Complainant

Respondent

Anonymised Parties

A Security Officer

A Security Company

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00015923-001

21/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00015923-002

21/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00015923-003

21/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00015923-004

21/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00015923-005

21/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00015923-006

21/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00015923-007

21/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00015923-008

21/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00015923-009

21/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00015923-010

21/11/2017

On 21 November 2017, the complainant lodged 10 complaints before the WRC. Following a validation check, the complainant submitted further detail during January,2018. The complaints were disputed by the Respondent. The case is set in the Security Industry.

The case came to hear on 8 May 2018.I sought a copy of the presiding Employment Regulation Order (Security Industry Joint Labour Committee) 2017. I received this and forwarded it to the complainant for comment and response. I did not receive any feedback. I proceeded to decision against that backdrop.

The Complainant is a Portuguese national who commenced work as a Static Security Guard in June 2015. He had previously worked in security in other jurisdictions. He also worked as a Supervisor during this period. He presented his case as a lay litigant. In advance of the hearing, the complainant had submitted a complaint form with supplementary documents and a pay slip. On the day of the hearing, he presented his case orally as he thought that the WRC would provide him with copies of his documents. He told the hearing that he worked on average 48 hrs per week and was paid 520-euro gross per week.

1.CA -00015923-001 (Organisation of Working Time Act ,1997) The Complainant submitted that he had not been compensated for Sunday working. He was unaware that the hourly rate of 12.03 euro constituted a composite rate.

2.CA -00015923-002(Payment of Wages Act ,1991)    The Complainant submitted that he had not received payment for overtime from June 2015-August 2017.

3 CA -00015923-003 (Industrial Relations Act ,1946) The Complainant submitted that he had not received the minimum rate of pay set out in the Employment Regulation Order since June 1, 2017.

4 .CA -00015923-004 (Organisation of Working Time Act ,1997) The Complainant submitted that he had not received his weekly rest break. He stated that “often I was 24 hrs off after coming off night shift and starting day shift after that 24 hours”. He had been late for work as a result and tried to raise a grievance without reaching a resolution. He confirmed that he received at least one day off per week.

5-6. CA -00015923-005 and CA-00015923-006 (Organisation of Working Time Act ,1997) The complainant submitted that he had not received compensation for the loss of his public holiday entitlement during or on leaving his employment. The Respondent had agreed to forward this sum and he found this confusing.

7. CA -00015923-007 (Organisation of Working Time Act ,1997) The Complainant submitted that he had worked excessive night hours. He submitted details of his roster which demonstrated a continuous night work pattern. He was aggrieved by the occasional 6 consecutive night rostering.

8. CA -00015923-008 (Organisation of Working Time Act ,1997) The Complainant submitted that he had not received public holidays in accordance with the Employment Regulation Order.

9. CA -00015923-009 (Industrial Relations Act ,1946) The Complainant submitted that he had not received his rest periods set out in the ERO.

10. CA -00015923-010 (Industrial Relations Act ,1946) The Complainant submitted that he had been denied the terms and conditions of employment laid down by the ERO.

The Respondent provides security services where the complainant was employed as a Security Officer in June 2015 .He worked as a security officer and a Mobile Supervisor until 15 September, 2017 .The respondent furnished a copy of a signed terms and conditions of employment which reflected a start date of 29 May 2015 and described an employment regulation order linked to pay .The Respondent described the fluid nature of the employment relationship where assigned roster duties were notified to all officers at least 48 hours before commencement of the working week, the base was movable across days and nights depending on the requirements of the business .

The Respondent submitted that the relevant period covered by the complaint was May 22, 2017 – November 20 ,2017 as comprising six months prior to the submission of the complaint.

1.CA -00015923-001 (Organisation of Working Time Act ,1997) The Respondent denied any breach of Section 14 of the Act. The Complainant worked Sundays as a Supervisor and received a composite rate of 12.03 euro per hour. This was made clear in his letter of appointment.

2.CA -00015923-002(Payment of Wages Act ,1991)   The Respondent confirmed that overtime is only applicable to hours worked an excess of an average of 48 hours per week in a roster cycle over 6 weeks. The respondent argued that the complainant was not eligible for overtime having completed average of 38 hrs and 42.34 over the reference period of June to September 2017.

3 CA -00015923-003 (Industrial Relations Act ,1946) The Respondent disputed the claim. The Complainant received 510 hrs pay as a supervisor and 113 at officer rate. This averaged 11.79 euro per hour which was more than the 11.05-euro rate outlined in the JLC.

4 .CA -00015923-004 (Organisation of Working Time Act ,1997)

The Respondent rejected this claim and confirmed that the complainant received his 24-weekly rest period in accordance with section 13. If he was unable to take the break, he would receive a compensatory rest as required under the regulations.

5-6. CA -00015923-005 and CA -00015923-006 (Organisation of Working Time Act ,1997) The Respondent confirmed that the complainant had received payment for two public holidays in the cognisable period on 23 October 2017.

7. CA -00015923-007 (Organisation of Working Time Act ,1997) The Complainant submitted that he had worked excessive night hours

The Respondent submitted that the complainant was liable to be rostered at night. Most of security is involved in night work through the industry. The Complainant worked the standard 12-hour shift at night which was not excessive.

8. CA -00015923-008 (Organisation of Working Time Act ,1997) The Respondent confirmed that the complainant had addressed this in earlier claims and the claim is not applicable in these circumstances.

9. CA -00015923-009 (Industrial Relations Act ,1946) The Respondent dispute the claim. THE ERO provides exemptions to employees in accordance with Section 13. The Respondent disputed the appropriateness of the claim given that it had already been addressed by the complainant.

10. CA -00015923-010 (Industrial Relations Act ,1946) The Respondent disputed the claim. The Complaints terms and conditions were governed by the Employment Regulation Order for Security Industries from the very beginning and the complainant had full knowledge of this a had not raised any issues.

I have considered both party’s presentations. The Complainant no longer works with the respondent. It was clear to me that he continued to hold a very pronounced sense of injustice on his employment experience with the Respondent. I did not find any details of issues raised within the employment experience apart from his dissatisfaction on the late to work form dated 27 May 2017.

I am bound by the statutory time limits set down in Section 41(6) of the Workplace Relations Act, 2015 i.e. from May 22, 2017.

I found that the Complainant had taken a lot of time to submit details of his case in advance of the hearing. However, he was not able to provide any extension on this detail at the hearing. I found it unreasonable for him to expect that we would provide him with copies of his own prepared documents.

In addition, I found that the case was not assisted by the respondent’s lack of records at hearing. Given that the evidential burden falls to the respondent on the Organisation of Working Time Act ,1997. I found this omission pronounced.

1.CA -00015923-001 (Organisation of Working Time Act ,1997)

Once I consulted with the ERO received which governed the period from 1 June,2017, I reviewed the complainants letter of appointment:

You will be allocated such shifts as required to be covered for holidays and sickness which will include days, nights and weekends.

The ERO, Security Industry provided that a rate of core pay of 10.75 euro per hour was to remain in place up until May 31, 2017. This was then to be replaced by 11.05 per hour. I note from the complainant’s records that he commenced sick leave around August 4 ,2017. Prior to this he appeared to have worked 10 Sundays in the period encompassed by the claim. I note that the complainant was paid a composite rate of 12.03 euro per hour (Supervisory Patrol) as detailed on the pay slip dated 20 July 2017. This appears to have taken account of the determination of Sunday working in his pay. I note that the ERO provides that

“where rates of pay (including composite rates) are higher that the rates cited, it shall be necessary for the employer to keep and make available to the worker concerned as appropriate such records as are necessary to show the above rates of remuneration as defined in this section are being complied with.”

I could not establish that this was challenged during the employment. The Respondent did not submit details of Sundays worked by the complainant and did not dispute his records.

I have found the complaint was not well founded.

2. CA -00015923-002(Payment of Wages Act ,1991)

The Complainant submitted a clarification in his claim on 29 January 2018. He sought the JLC/ERO increase from June 2017. I note that this increased the hourly pay to  11.05 euro. The Complainant sought payment of 5,600 euro but did not particularise the claim.

From a careful perusal of the time sheets submitted, I found that the complainant recorded working 380.4 hours within the cognisable period up to early August 2017, most of the hours were at supervisor grade. I have established that the complainant was underpaid for that period in accordance with Section 5(6) of the Act and is entitled to make good his loss. I have found the complaint to be well founded.

I have not found merit in the claim for overtime pay as I accept the Respondent argument on the 48-hour threshold provided for in the ERO. The Complainant received a copy of the ERO on June 19 last and did not comment on this point.

3. CA -00015923-003 (Industrial Relations Act ,1946)

I have considered both parties responses to this claim. The JLC revised rate was not applied at the respondent company during the cognisable period. This was a contravention and the complaint is well founded. I do not accept the averaging argument advanced by the respondent. I declare that the complaint is well founded and order the Respondent to comply with the terms of the ERO.

4 .CA -00015923-004 (Organisation of Working Time Act ,1997)

Weekly rest periods

Section 13. — (1) In this section “daily rest period” means a rest period referred to in Section 11.

(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.

In considering this claim, I took account of the fact that the Respondent did not submit records outside of the bare assertion that the requisite 24-hour compensatory rest period was granted. I also took account of the “late to work” form submitted by the complainant dated 26 May. I found a breach of Section 13 in that regard. I did not establish a re-occurrence of this breach in the documents submitted or in evidence. I find the complaint to be well founded.

5 CA -00015923-005 and CA -00015923-006 (Organisation of Working Time Act ,1997)

I have considered the responses of the parties. I considered the complainants email of November 10, 2017 which sought clarification of a 215-euro payment received on 23 October 2017. It is regrettable that this request for clarification was ignored by the respondent as it may have netted down the issues.

I find the complaint was not well founded.

7. CA -00015923-007 (Organisation of Working Time Act ,1997)

Section 16 of the Act covers night working. The Complainant submitted his rosters worked during the cognisable period. It was clear that he worked a lot of nights but no evidence was adduced on his being a special category night worker or whether he had sought a risk assessment in line with the Safety Health and Welfare at Work Act, 2015.The Complainant had not raised a grievance on his disquiet at his perceived excess nights.

Based on the information before me, I could not establish a breach in Section 16 of the Act. The complaint is not well founded.

8. CA -00015923-008 (Organisation of Working Time Act ,1997)

I found that this claim was not well founded. The ERO provides that the Public Holiday entitlement shall be in accordance with the Organisation of Working Time Act, 1997. I have already addressed this in two earlier claims.

8. CA -00015923-009 Industrial Relations Act 1946.

Section 2 of the ERO provides that workers are exempt by agreement from the provisions of SS 11,12, and 13 of the Organisation of Working Time Act 1997 and were therefore entitled to compensatory rest breaks. I could not establish just how the respondent had secured the complainants agreement to the exemption as set out in Section 4(6) of the Organisation of Working Time Act 1997.It was not detailed in any of the documentation submitted.

However, the complainant did not particularise this claim and I noted that the respondent did not submit records. There is an element of duplication in this claim.

However, I find the claim to be well founded considering the lack of evidence of consent to the exemptions in the ERO.

10. CA -00015923-010 (Industrial Relations Act ,1946)

I have found this complaint not well founded as the complainant was not able to particularise the claim. The WRC forwarded a copy of the June 2017 ERO to the complainant on June 19, 2018 and the complainant was given an opportunity to respond to this. I have not received a response and draw inferences from this.

I have ordered compensation to the value of 750 euro for the complainant. In addition, I have ordered compensation under the Payment of Wages Act less statutory deductions.