Complainant

Respondent

Anonymised Parties

A security officer

A security company

Representatives

Barry Kenny Kenny Sullivan Solicitors

Tim Kennelly Solicitors

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-00020398-001

06/07/2018

The Complainant commenced working for the Respondent in March 2000, in 2014 the company was taken over by the Respondent and the Complainant transferred via TUPE to the Respondent.

The Complainant earns approximately €550 per 42-hour week.

This complaint submitted under section 6 of the Payment of Wages Act was received by the Workplace Relations Commission on 6th July 2018.

As per the complaint form submitted to the WRC the Complainant states the following:

“My employer has stopped paying me for overtime. He stopped paying overtime about four months after the company was taken over in 2014. Since then I have been trying to negotiate this issue. My employer previously agreed to pay me the overtime that was due at the end of February 2018. He failed to comply with the agreement to pay and has not paid me and refused to engage with me further on the matter. I am still required to work overtime and am not being paid”.

In an undated letter to the Respondent the Complainant has listed what he believes to a breakdown of the wages he is due and has not been paid:

Overtime:

The Complainant alleges that he has not been paid overtime as per his contract since 30th April 2014.

From 31/05/2014 to 30/12/2014   €2770.92

From 31/01/2015 to 30/12/2015     €2690.28

From 31/01/2016 to 05/12/2016     €2491.64

From 31/01/2017 to 03/11/2017     €2290.08

Total                                                         €10,242.92

Mobile Patrol Rates:

Contractually the Complainant has calculated his loss as follows:

Due to the amount of opening and closing and spot checks and the Complainant has limited these to reduce costs.

Opening and Closing €15.00 per call. The Complainant has limited this figure to €50 per week and not the average of 15 calls per week.

Spot Checks at €15.00 per call. The Complainant has used the figure of 5 calls per night as it never goes under this figure but often goes above this figure. The Complainant has kept this to 14 days per month.

Spot checks: 5 per night times 14 nights = 70 spot checks per month by €15 each = €1050 per month.

Open and Close: €50 per week = €200 per month

Monthly total €1250 per month x 36 months = €45,000

When the Overtime claim is added to the Mobile Patrol Rates the total is €55,242.92 – this total is what the Complainant is claiming.

The Representative for the Complainant informed the hearing that the Complainant had submitted a complaint to the WRC under S.I.No.131/2003 – European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. The nature of the complaint was that the Respondent was not honouring the Complainant’s contractual rights when they acquired the company in 2014. The hearing was scheduled for February but was withdrawn by the Complainant because he believed at that time he had reached a verbal agreement with the Respondent that he would receive €35,000 in full and final settlement of the above. Any agreement made was not honoured.

For a period of tie the Complainant had his working hours reduced from 48 hours per week to 24 hours per week. He was also taken from mobile patrol driving to static duties, in the security industry this would be viewed as a demotion.

The Respondent denies that any figure in the region of €35,000 was agreed. The Respondent MD who was present at the hearing stated that any deal of that type of magnitude would have to come to him for approval and this certainly was not the case.

The Respondent’s Operations Manager was also present at the hearing and it was he who was communicating with the Complainant. He informed the hearing that the bulk of what was being claimed excluding overtime was not due.

The Operations Manager informed the hearing that he had gone over all the figures for a two-year period and had calculated an underpayment of approximately €10.100. The Operations Manager also said that most of the communication was done by email and not direct.

The Operations Manager also stated that he did not have the authority to make any deal with the Complainant but would relay the information back to the employer.

Section 6 (4) of the Payment of Wages Act, 1991 reads as follows:

(4) “a rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable”.

In this instant case the claim for unpaid overtime is outside the cognizable period of six months and I have no alternative but to deem the complaint not well found and therefore fails.

In relation to the amount being sought for openings and closings etc., I see from the letter written by the Complainant to the Respondent that the time period involved is three years over the last 36 months i.e. €1250 per month x 36.

Due to clause 6 (4) I cannot go back over three years. I therefore have calculated that the amount for 6 months is €7,500.

I believe this complaint is well found and now order the Respondent to pay €7,500 gross to the Complainant.

This award should be paid within 42 days from the date of this decision.

As outlined above.

Payment of Wages Act, 1991.