Complainant

Respondent

Anonymised Parties

Security Officer

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-00011461-001

22/05/2017

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

CA-00011461-002

22/05/2017

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

CA-00011461-003

22/05/2017

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

CA-00011461-004

22/05/2017

The claimant is employed as a Security Officer with the respondent – he commenced in mid 2013 with another security company and transferred to the respondent who was awarded the contract with effect from the 16th.Nov. 2014.It was submitted that following the take over by the respondent the claimant formed the view that changes to rosters and shifts were afoot without any consultation and he estimated that he was loosing approx. one shift per week. It was contended that TUPE applied to the claimant’s terms and conditions of employment – rostering duties were taken away from the claimant’s supervisor and a 13 week roster was introduced which was less flexible than the previous rostering arrangement.It was contended that the new roster effected changes to the claimant’s working hours and he was unhappy with this.Up to that point the claimant worked 156 hours per month equating to 39 hours per week – 3 weeks of 36 hours with 3 X 12 hour shifts and one week where he worked 48 hours with 4 X 12 hour shifts that week.The claimant set out a chronology of his exchanges with management about his grievance that his hours were cut and were being undertaken by a fifth person who was “ effectively taking up the slack to cover the hours which were being cut from the claimant and his colleagues”.The estimated loss incurred was €8,514.00 from Nov. 2014 – Sept. 2016.

The claimant submitted that he was only paid a flat rate and set out the current roster – he submitted that he was now faced with a position whereby “ the missing 36 hours per month which would ordinarily be comprised of 3 shifts , are thrown in anywhere the employer chooses and he has been forced ( in or around April 2017) to use up holidays where he has been paid as normal as he is paid for 136 hours per month.He was told that he was to use up 15 hours of annual leave which was unused from last year and to take a further 24 hours annual leave from the current year’s annual leave entitlement.This resulted in the complainant loosing one week’s annual leave entitlement as a result of the failure of the respondent to provide him with the regular roster working hours.”It was submitted that the claimant’s working hours are entirely comprised of nights , except for 2 days per month.It was submitted that other employees have priority to day shifts and that it appeared that 2 other colleagues receive overtime payments once they exceed 39 hours per week while the claimant is paid a flat rate – this , it was asserted contravened Section 16 of the Organisation of Working Time Act .It was submitted that a   collective dispute was referred by SIPTU on behalf of the claimant and his colleagues for conciliation arising from which a settlement was reached.It was submitted that the claimant’s complaint was submitted on the 22nd.Feb. 2017 and that the time frame for consideration of same should extend for 12 months .It was submitted that as far as the claimant was concerned the respondent repudiated the agreement and the claimant did not want to lodge a complaint until he saw in practise if the respondent was going to adhere to the agreement.In summary it was submitted that “ the employer has failed to comply with the agreement reached following a conciliation conference. The claimant believed that Officer 5 was getting a number of shifts per month which did not comply with the conciliation agreement and that he is losing one shift per week which was allocated to Officer 5..”the manner in which the roster is being operated means that the complainant appears to be covering 3 additional shifts per month and if no such shifts are available he is paid for the standard working hours but may be called in at short notice to make up the shifts which are not on the roster”.

In a later submission following receipt by the respondent’s representative of the ERO(Security Industry Joint Labour Committee )2017, it was contended that the ERO did not exempt the Security Industry from Section 18 and it was argued that the order took effect from 1st.June 2017 while the claimant had commenced employment in 2013.The submission proceeds to contend that the claimant is not receiving the benefits set out in the ERO with respect to overtime   and that the failure to apply a 6 week roster was contributing to the claimant’s grievances. It was submitted that the respondent failed to meet the obligations set out in the ERO with respect to notice and rostering. It was asserted that the only Security Officer who was n’t in receipt of an unsociable allowance was the claimant. It was submitted that the claimant was working excessive night shifts and an even distribution of night work was not happening- contrary to the agreement reached at Conciliation. It was submitted that the respondent had failed to furnish the rosters for 2015 and 2016 so that the average working hours and payment could be worked out.

In his direct evidence the claimant set out the rosters as they applied to his colleagues and stated that unlike his colleagues he was not paid a night duty allowance   and he worked 90% of the night time hours.He contended that his night were consistently been drawn from holiday cover for his colleagues and submitted that it was frequent last minute notification to provide cover.

The respondent denied any breach of the legislation and submitted that   the matter of pay had been the subject of Conciliation arising from which a proposal dated the 29th.April 2016 emerged – it was submitted that this had been agreed to by SIPTU on behalf of the claimant and that on foot of that agreement the claimant works an average of 39 hours per week over a 13 week period , working less than 39 hours some weeks , more than 39 hours another week “ but he is only ever paid for a 39 hour week”.It was submitted that no detail of the alleged losses of €6,966 had been set out and that accordingly the complaint should fail.

It was submitted that at any given time, 5 employees work the roster at the claimant’s location and that when each of the staff transferred over to the employment of the respondent , the respondent honoured their pre transfer terms and conditions of employment. It was asserted that there was no obligation on the transferee to improve the pre transfer terms snd conditions .It was submitted that the claimant never had an entitlement to any premium for working night time shifts prior to the transfer. It was contended that the claimant was not loosing hours to a relief worker – that the 5th.Officer referred to by the claimant was a permanent member of staff.

As regards overtime, it was submitted that prior to the transfer of undertaking the claimant had to work 96 hours per fortnight to be paid overtime.It was contended that other staff had an entitlement to overtime without working that number of hours owing to the fact that they had acquired those rights prior to the transfer. It was submitted that the claimant was mistaken in his understanding of the terms of employment of his colleagues but that those terms cannot be disclosed because of Data Protection.

It was submitted that the claimant worked on average 39.5 hours in 2017 when the claimant’s requests for shift off s were factored into the calculation ; It was submitted that the claimant worked on average 39 hours per week in 2016 when account was taken of the shifts declined by the claimant and that his average for 2015 was 37.5 hours - he missed 10 weeks off work that year owing to sick leave, holidays and a 3 week suspension.The respondent asserted that the short notice for providing cover was attributable to the security officer’s unwillingness to plan their leave