Complainant

Respondent

Anonymised Parties

A Security Officer

A Security Business

Representatives

Appeared in Person

No Appearance by or on behalf of the Respondent

Act

Complaint Reference No.

Date of Receipt

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

CA-00018647-001

22/04/2018

This case concerns the unsuccessful pursuance to date of Employment Regulation Order rates for overtime and public holidays. The Complainant is a lay litigant. There was no appearance by or on behalf of the respondent.

The Complainant is a Polish national who worked as a Security Officer from 10 April 2017. He presented his case with the assistance of a Polish Interpreter. He worked a 45-69-hour week with the Respondent business which changed ownership in October 2017. The Complainant experienced several problems regarding receiving payment for work done.

The Complainant submitted that he had been unaware of the existence of an Employment Regulation Order in the Security Industry. His   new employer had honoured the ERO rates and on March 8, 2018, the Complainant stated that he wrote to the Respondent seeking ERO rates for overtime and public holidays. He submitted that the Respondent had undertaken to pay him but did not do so.

The Complainant presented a historical written response dated 15 July 2017 which confirmed payment for 16 hours and a confirmation that the complainant held no entitlement to be paid for bank holidays not worked.

The Complainant particularised his claim to €505.53 in respect of overtime and €348.80 in respect of public holidays. This covered a period 17 April (week 15) to October, week 41, 2017.

The Complainant also raised that on a careful perusal of his Statutory PRSI records, he discovered that he had not been credited with 27 weeks of Employer PRSI contributions during 2017. This distressed him as he had worked all over the world and had not experienced this treatment previously. The Complainant submitted a P45 Proforma which detailed a cessation date of 13 October and 27 weeks of insurable employment. The Complainant sought a payment in accordance with the ERO.

The Complainant had previously raised issues about a lack of clarity of the Respondents legal title but confirmed that he wished the case to proceed against the Respondent citing that the P45 and Pay slip contained the same legal title.

He realised that his claim covered a period outside the 6-month window permitted, he attributed his delay in submitting his claim to lack of knowledge of Irish law and ERO and having to get a Lawyer’s advice. He sought an extension in time on that basis.

The Complainant submitted an extensive grouping of pay slips and redacted bank statements post hearing. These were copied to the Respondent but did not illicit a response.

The Respondent did not defend the claim and correspondence directed to his address was returned to the WRC.

I have considered the facts as presented by the complainant.

I allowed time at the commencement of the hearing for a late attendance by the Respondent. There was no appearance and no formal response to the claim. I am satisfied that he was notified of the claims.

I explained to the complainant that I accepted his wish to process the claim against the first named Respondent, ie the name on the complaint form.

As a first step, I must clarify that while I listened to the complainant’s shock at discovering a shortfall in his PRSI records. I have no authority or jurisdiction to address this issue and the complainant ought to follow up this alleged shortfall directly with Department of Social Protection. I note that he has not as yet actioned a complaint.

The next issue I need to address is my jurisdiction to make a decision in this case and whether the claim for reasonable cause as pleaded by the Complainant can succeed?

The claim came before the WRC on 22 April 2018. The complainant, by his own admission commenced working for a new employer in October 2017, when the business was taken over. I was a little confused to see an email from an Employment support body dated April 2018 seeking an assurance from the Respondent in this case whether the complainant was still employed by him? I can only assume that the employment body was following up on the continuous employment.

I have considered the complainants application for an extension of time on reasonable cause in accordance with Section 41(8) of the Workplace Relations Act ,2015. I have decided that his circumstances warrant that extension. The cognisable period in this claim is therefore 23 April 2017 to 22 April 2018, noting that the complainant has taken no issue with his pay from October 2017 onwards.

Finally, I must consider whether the rates claimed are properly payable?

I have considered the extract from the ERO submitted by the complainant. I note that overtime worked at more than an average 48 hrs was to be paid at time plus half. The complainant pays slips submitted indicated a flat wage. I find that he worked in the Security Industry and was eligible for ERO rates during the cognisable period. I find that based on the complainants uncontroverted evidence, that the omission to pay these rates amounted to a deduction in wages in accordance with Section 5(6) of the Act.

I find that aspect of the claim to be well founded.

I have considered the claim for public holiday payments and I note that the complainant was not working during the 4 days cited. I have insufficient information before me to decide in that aspect of the case.

I find that aspect of the claim to be not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 6 of the Payment of Wages Act, 1991 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have found that the Complainant should have received overtime rates as provided for in the ERO submitted by the complainant, during the cognisable period. I order the Respondent to pay the complainant €496.80 in compensation for the breach of Section 5 of the Act.

I have found the claim for payment of public holidays to be not well founded.

Payment of Wages