Complainant

Respondent

Anonymised Parties

A Security Guard

A Security Company

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00017938-001

14/03/2018

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

CA-00017938-002

14/03/2018

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

CA-00017938-003

14/03/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00017938-004

14/03/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00017938-005

14/03/2018

The complainant was employed by the respondent as a security guard on the 26th September 2010. He was paid €11.05 per hour and he worked for 30 hours per week. The complainant is claiming under the Payment of Wages Act, 1991 in respect of wages and an unlawful deduction in respect of his uniform. He also has a dispute under the Industrial Relations Act in relation to returning to work, pay and deductions from his wages in relation to his uniform.

The worker said that on his return from annual leave on the 4th September 2017, he was ready and available for work but the respondent failed to put him back on the roster and provide him with work.

The union on behalf of the worker submitted worker has been employed as a security officer since 2010 working on various locations. He worked 30 hours per week on Monday and Tuesday doing two 15 hours shift.

The workers contract dated 1st August 2012 confirms that the rate of pay is in accordance with the JLC/ERO Agreements.

In June 2017, the worker was informed that he was entitled to 16 days annual leave. He informed his employer he wished to take 2 days holidays per week beginning in July and ending on the 3rd September 2017. Initially the request was refused by his line manager, but subsequently his leave was granted and he went on leave.

On the 6th August 2017, the worker received a text from his employer asking that if he was sick and that he needed him to send in medical certificates. The worker said that for some reason it seemed that the employer was of the view he was on sick leave instead of holidays. He could not answer the text as he was on leave. On his return from annual leave on the 4th of September, the employer requested a fitness to return to work certificate before he would put him back on the roster. The worker sought clarification as to why he needed to provide sick certificates as he was not on sick leave. It seems that the employer was of the view that the worker was on sick leave and wanted a fitness to return certificate and the worker was not provided with any work pending the production of this certificate.

The union contacted the employer to try and resolve the issue. They wrote to the employer on the 2nd October 2017, and requested that he be provided with work. On the 19th October 2017 his union raised a formal grievance but the matter was not resolved.

The employer said that the worker requested 16 days holidays in June 2017 and this was refused as he was not due this number of holidays. He also had not given 4 weeks’ notice of his holidays as required. Text messages between the worker and his line manager said that he was getting his back fixed. The employer understood that he was taking time off to see a specialist about his back. The worker’s last day at work was the 28th June 2017. He was paid for 2 weeks holidays and thereafter he was not paid. He did not provide any medical certificates.

On the 6th August the worker’s line manager texted him asking if he was ok and seeking a medical certificate as he was off for a long time. The worker did not reply. The worker’s mother informed the office that he would be back to work on the 4th September and his line manager texted looking for a fitness to return to work. The worker telephoned seeking the reason he required such a certificate. He was informed that he needed a fitness to return to work certificate because he was off work with an issue with his back.

The employer said that the worker did not provide a fitness to return to work certificate and he was not rostered for work as a result.

I note that there was some confusion about whether the worker was on annual leave or sick leave. I have reviewed a series of text messages between the worker and his line manager. He applied for 16 days holidays and he was told initially that he was not entitled to them. In response the worker explained that he was taking 2 days per week for 8 weeks in July and August. As he worked only 2 days per week this was 16 days annual leave. In a follow up text, the worker’s line manager appeared to indicate that it was OK.

There appears to have been no objection to him going on holidays and he was paid 2 weeks holiday pay.   While the worker mentioned in his text message concerning his holidays, that he had 3 motor bike accidents over the years and suffered soreness and stiffness in his back and he was going to get it sorted out while he was on holidays, he did not say he was taking sick leave. The worker indicated he was returning to work after his holidays, but the employer wanted a fitness to return work medical certificate and the worker disputed its necessity. The worker’s union activated the grievance procedure and requested a return to work for him without success.

I note that the employer agrees that the worker is still an employee and that he can return to work.

In the circumstances I recommend that the employer reinstate the worker to his position as a security guard and pay him compensation of €1,000.

I recommend that the employer reinstate the worker to his position as a security guard and pay him €1,000 compensation.

The contract of employment provided that €6 per week be deducted from the worker’s wages as a contribution to his uniform and that a new uniform would be supplied, on average, twice per year. The worker states that he has only received 2 uniforms up until now. The worker has informed the employer on several occasions that he does not accept such a contract and does not wish to pay for any uniform as he would be losing €320 each year. Despite the worker’s protest the employer has continued to make the deduction from his salary.

The employer said that all employees have been provided with a contract of employment and this provides that all security guards pay €6 per week towards the cost of their uniforms. The €6 is deducted from their weekly wages. This entitles the security guards 2 uniforms per week. The worker has refused to sign the contract of employment.

The worker was given a refund in 2013 as he had not received his uniform that year. The onus is on the employee to claim their uniform. The worker never complained about the deduction from his wages.

I note that the worker’s contract provides for the deduction of €6 per week from his wages for two uniforms per year and in the event of the worker leaving the company the uniform must be returned to the company otherwise the final payment will be withheld until it is returned. The worker did not sign the contract because he did not wish to pay as he would be losing €320 per year from his wages.

I note that S.I. No. 231 of 201 Employment Regulation Order (Security Industry Joint Labour Committee) 2017 which applies to workers in the security industry provides in respect of uniforms:

(12) Uniforms

“Subject to normal wear and tear the cost of all uniform items supplied and provided to workers during their employment will be borne by the employer subject to the following:

— if a worker leaves the organisation within 3 months of the issuance of uniform item(s) to him/her, the employer may deduct 100% of the actual verified cost of the uniform item(s);

— if a worker leaves the organisation after 3 months but before 6 months of the issuance of uniform item(s) to him/her, the employer may deduct 50% of the actual verified cost of the uniform item(s);

— if a worker leaves an organisation and the uniform items are not returned to the organisation, the cost of the uniform items may be deducted from any payment due to the worker.”

The deduction from the worker’s wages for his uniform contravenes the terms of the above SI 231 of 201 as it states that the cost of uniforms “will be borne by the employer”.

I recommend that the uniform deduction ceases immediately and that the contract of employment is amended to ensure compliance with the terms of the Statutory Instrument. I award the worker €1,000 compensation in respect of the deduction.

I recommend that the uniform deduction ceases immediately and that the contract of employment is amended to ensure compliance with the terms Statutory Instrument. I award the worker €1,000 compensation in respect of the deduction for the uniform.

The worker complained that the employer failed to comply with the new ERO rates of pay which came into effect on 1st June 2017 for a period of 5 weeks. The rate went up from €10.75 per hour to €11.05 per hour on the 1st June 2017.

The employer said that there was a period of 5 weeks from the 1st June when the new rate was not paid.

I note that S.I. No. 231 of 2017 Employment Regulation Order (Security Industry Joint Labour Committee) 2017 provides that €11.05 per hour was payable from 1st June 2017 and the worker remained on the old rate for 5 weeks. I find the there is merit in the complaint and I award the worker €45 compensation.

I find that there is merit in the complaint. I award the worker €45 compensation in respect of the arrears of pay due and this amount is subject to any lawful deductions.

The complainant is seeking payment for his contractual number of hours per week for the period following the 4th of September 2017, when he was available for work following the taking of his annual leave, but he was not restored to the roster or paid his wages. The complainant is disputing the respondent’s contention that he was on sick leave and that he would have to produce a fitness certificate before he could be allowed back to work. The complainant said that he was not on sick leave and he had not attended a doctor while he was on leave and there was no necessity for him to provide a fitness to return to work certificate.

The complainant’s union submitted that the respondent failed to resolve the issue or engage with the union in seeking a resolution and that the complainant remained out of work without pay. He submitted that the complainant is entitled to be paid his wages from the 4th September 2017 to date as per his contract of employment.

The respondent said that in June 2017, the complainant requested 16 days holidays but he was not entitled to the number of days he proposed to take and the request was refused.   He told his line manager that he was getting his back fixed. On the 28th June 2017, the complainant went on holidays and he was paid for the first two weeks and thereafter he was not paid. The respondent understood he was on sick leave because he had indicated to his line manager in a text message, before he went on holidays, that he was getting his back fixed. He requested a medical certificate which was not provided. The complainant notified him that he was returning to work on the 4th September 2017. The respondent said that he sought a fitness to return to work certificate, but it was not provided. He said that the complainant could not be put back on the roster until the certificate was provided.

While the respondent appears confused about whether the complainant was on holidays or sick leave, I note that he paid the complainant 2 weeks holidays up until the 3rd August 2017. I note that the contract of employment states that holiday pay will not be paid to cover sick leave, in my opinion, paying the complainant holiday money for this period was an acceptance he was on holidays. It would appear that the respondent assumed that the complainant was on sick leave after the 3rd of August. Having reviewed the text messages between the parties, I am satisfied that the complainant did not say he was taking sick leave. The request that the complainant provide a medical certificate to say he was fit to return to work was based on an incorrect assumption. The respondent had no basis to stop the complainant from returning to work until he produced such a certificate.

The question I now must consider is whether the complainant is entitled under the Payment of Wages Act to his wages for the period he was not working.

The Payment of Wages Act provides at Section 5.—(1) “An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) ….”. In O’Sullivan v Department of Education [1998} E.L.R. the EAT held that a deduction includes any amount payable to an employee. It stated: “the Tribunal considers that if an employee does not receive what is properly payable to him or her from the outset then this can amount to a deduction within the meaning of the 1991 Act. We take ‘payable’ to mean properly payable. The definition of ‘wages’ goes on to give examples of types of payments which can amount to ‘wages’ and states that the payments can amount to wages ‘whether payable under [his] contract of employment or otherwise ….’ Although in our view it is not simply a matter of what may have been agreed or arranged or indeed paid from the outset but, in the view of the Tribunal, all sums to which an employee is properly entitled.”

The complainant was available for work but he was not provided with work for the stated reasons. I am satisfied that his wages were “properly payable” to him in circumstances where for no good reason he was not provided with work. Applying the statutory provisions and the EAT jurisprudence in the O’Sullivan case, the non-payment of the complainant’s wages amounts to a deduction within the meaning of the Act.

For these reasons, I find that the complaint is well founded.

I note that the complainant states that he is entitled to his wages from the 4th of September onwards. The complaint was referred to the WRC on the 14th March 2018.

Section 6 of the Payment of Wages Act does not permit an award of compensation for a contravention after the referral of the complaint. Under Section 41(6) of the Workplace Relations Act 2015, there is a 6-month time limit for referring a complaint to the WRC and this can be extended under 41(8) by 6 months if reasonable cause for the delay can be shown. There was no application to extend the time limit. Accordingly, the calculable period for redress is, the six months (26 weeks) predating the 14th of March 2018.

The complainant worked 30 hours per week and was paid an hourly rate of €11.05. 26 weeks x 30 hours x €11.05 = €8,619. I award compensation in the amount of €8,619.

II find that the complaint made pursuant to the Payment of Wages Act is well founded. I order the respondent to pay the complainant redress in the amount of €8,619 subject to any lawful deductions.

The complainant states that the deduction of €6 per week in respect of his uniform is an unlawful deduction under the Payment of Wages Act. He said that he never agreed to the deduction being made and refused to sign his contract of employment for this reason.

The respondent submitted that the deduction of €6 per week is provided for in the contract of employment.

The complainant referred this complaint to the WRC on the 14th March 2018. The last day he was paid and that the deduction could be made from his wages was the 3rd August 2017.

Section 41(6) and 41 (8) of the Workplace Relations Act, 2015 provides as follows:

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

“(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

There was no application made to extend the time limit. Therefore, the 6 month time limit for the deduction would have commenced on the 3rd August 2017 and ended on the 2nd February 2018. As there was no deduction made within this period, the complaint referred on the 14th March 2018 is outside the statutory time-limit under the above cited section. Therefore, I have no jurisdiction in the matter.

I find that the complaint was referred outside the statutory time limit and I have no jurisdiction in the matter.

Industrial Relations Act 1969, dispute about returning to work, deduction from wages in relation to uniform, underpayment of ERO rate, Payment of Wages Act.