ADJ-00017496

Complainant

Respondent

Anonymised Parties

A Security Officer

A Security Company

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00022158-001

21/09/2018

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

CA-00022158-002

21/09/2018

The complainant worked for the respondent as a security officer from November 7th 2016 until September 10th 2018. He resigned when he got a new job. His complaint is that he was not paid for hours worked as overtime and he did not receive a statement of his terms and conditions of employment.

At the hearing, the complainant produced payslips which confirm that he is a former employee of the respondent. The payslips show that, when he finished up with the respondent, he was paid for €595.88 for 52.5 hours each week, resulting in an hourly rate of €11.35.

The hours of work shown on the complainant’s payslip are in line with what he said was his normal working week, from 7.30am to 6.00pm from Monday to Friday.

The Employment Regulation Order (ERO) for the Security Industry (Statutory Instrument 231 of 2017), provides that, up until May 31st 2017, the hourly rate of pay for security officers was €10.75. On June 1st 2017, the rate was increased to €11.05 and, on June 1st 2018, it was increased to €11.35.

Section 3 of the ERO addresses pay for overtime:

“Overtime rates shall apply as follows:-

(a) all hours worked in excess of an average 48 hours per week in the roster

cycle will be paid at a rate of time and a half;

(b) a rostered cycle shall be a predetermined working pattern, which can be

up to a maximum of six weeks, which has been issued to the worker in

writing prior to the commencement of the roster cycle.”

At the hearing, the complainant said that, for the duration of his employment with the respondent, he was paid a flat rate for all the hours he worked in excess of 48 hours each week. He claims an entitlement to pay for 4.5 hours’ overtime worked for the duration of his employment from November 7th 2016 until September 10th 2018.

The respondent did not attend the hearing and did not send a written submission.

Based on the evidence presented by the complainant at the hearing of this complaint, I find as follows:

Timeframe 1

From the commencement of his employment on November 7th 2016, until May 31st 2017, the hourly rate of pay for security officers was €10.75. Therefore, the hourly rate for overtime, at time plus a half, was €16.12. From November 7th 2016 to May 31st 2017 is 29 weeks and two days.

The shortfall in the rate of pay for overtime is €10.75 ÷ 2 = €5.375.

29 weeks @ 4.5 hours per week is 130.5 hours.

130.5 hours x €5.375 = €701.44

Timeframe 2

From June 1st 2017 until May 31st 2018, the hourly rate was €11.05; therefore, the overtime rate was €16.58. From June 1st 2017 until May 31st 2018 is 52 weeks.

The shortfall in the rate of pay for overtime is €11.05 ÷ 2 = €5.525.

52 weeks @ 4.5 hours per week is 234 hours.

234 hours x €5.525 = €1,293

Timeframe 3

From June 1st 2018, the hourly rate was €11.35; therefore, the overtime rate was €17.02.   The complainant left his job on September 10th 2018. From June 1st 2018 until September 10th 2018 is 14 weeks and one day.  

The shortfall in the rate of pay for overtime is €11.35 ÷ 2 = €5.675.

14 weeks @ 4.5 hours per week is 63 hours.

63 hours x €5.675 = €357.53

Conclusion

Based on these findings, I have concluded that the complainant suffered a shortfall of €2,352 in respect of the non-payment of the overtime rate set out in the 2017 ERO for the security industry.

Based on the conclusions reached in the previous section, I decide that the respondent is to pay the complainant €2,352 in respect of the shortfall in overtime earnings, in contravention of the provisions of the Employment Regulation Order for the Security Industry during his employment from September 10th 2016 until September 10th 2018.

At the hearing, the complainant said that he did not receive a statement of his terms and conditions of employment and he did not receive an employee handbook that might have provided information about the company’s policies.

The respondent did not attend the hearing and did not send a written submission.

This complaint has been assigned by the pre-registration unit at the WRC under section 45A of the Industrial Relations Act 1946, which provides for redress for contraventions of an ERO. The complainant himself submitted a manual form and did not specify the legislation under which this complaint was to be adjudicated on. I have decided that it is more appropriate to consider this complaint about not having received a statement of terms and conditions of employment under Section 7 of the Terms of Employment (Information) Act 1994.

Section 3 of the Act provides that, within two months of the commencement of an employee’s employment, they must get a written statement setting out their terms and conditions of employment. Generally written up in the form of a contract, these statements are to include the following:

(a) The name of the employer and the employee;

(b) The address of the employer;

(c) The place of work, or, where there is no fixed place of work, the statement must specify that the employee is required to work at various places;

(d) The job title or the nature of the work that the employee is required to carry out;

(e) The date that the employees commences in the job;

(f) If the contract is temporary, the expected duration, or if the contract is for a fixed-term, then the end date of the fixed-term;

(g) The rate or method of calculation of the employee’s pay;

(h) The frequency of pay;

(i) Any terms or conditions relating to hours of work (including overtime);

(j) Any conditions relating to paid leave (other than paid sick leave);

(k) Any terms or conditions relating to –

       (i) Incapacity for work due to sickness or injury and paid sick leave;

       (ii) pensions and pension schemes;

(l) The notice that the employee is required to give and the notice that he or she is entitled to receive at the termination of their employment;

(m) Details of any collective agreement which affects the employee’s terms and conditions of employment.

From the evidence of the complainant, it is apparent that the respondent in this case ignored his legal responsibilities regarding his entitlement to a written statement setting out his terms and conditions of employment. At a minimum, the respondent should have given the complainant a copy of the ERO which applies to employees in the security sector.   The effect of not doing so is to tarnish the employment relationship with uncertainty and to make it difficult for the employee to assert his rights during, and at the termination of his employment. This is precisely what the enactment of the Terms of Employment (Information) Act 1994 is intended to avoid.

As the duration of the failure to issue a statement of terms and conditions of employment was the entirety of the complainant’s tenure with the respondent, I decide that the respondent is to pay the complainant compensation of €2,383.52, equivalent to four weeks’ pay.

CA-00022158-001: €2,352.00       Reason: Failure to pay the correct overtime rate

CA-00022158-002: €2,383.52       Reason: Failure to issue a statement of terms and conditions of employment

Total award:             €4,735.52

Employment Regulation Order, terms and conditions of employment, overtime