Complainant

Respondent

Anonymised Parties

A Security Operative

A Security Company

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00031666-001

18/10/2019

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

CA-00031666-002

18/10/2019

The Complainant was employed as a security operative by the Respondent, a security company.

On 18 October 2019, the Complainant submitted a complaint to the Workplace Relations Commission. This complaint consisted of two separate claims, as follows:

1.       A complaint under the Organisation of Working Time Act, 1997, in relation to the non-payment of Sunday premium for hours worked. (CA-00031666-001)

2.       A Complaint under the Industrial Relations Act, 1946, in relation to the Respondent’s failure to provide minimum weekly working hours, in line with the Employment Regulation Order in place at the time. (CA-00031666-002)

These complaints are the subject of this adjudication.

CA-00031666-001:

The Complainant’s representative submitted that the Complainant worked 60 hours on Sundays in the six months prior to the complaint being lodged with the WRC. According to evidence submitted by the Complainant, no Sunday allowance premium was paid for these hours. In addition, it was submitted that the hourly rate did not take account of Sunday working in the determination of pay, in which case would represent a contravention of Section 42A(7)(b) of the Industrial Relations Act 1946.

In support of his claim, the Complainant relied on Sections 14(3) and 25(1) of the 1977 Act. In addition, the Complainant referenced the case of Viking Security Ltd v Valent [DWT1489 (October 2014)], in which the Labour Court decided that time plus a third was a reasonable compensation for working on Sundays.

In conclusion, it was submitted on behalf of the Complainant that he was seeking a decision that his complaint was well-founded and was requiring that the Respondent will comply with the relevant provision and will pay compensation of such amount as is just and equitable having regard to all the circumstances.

CA-00031666-002:

The Complainant’s complaint under this heading relates to the contravention of the relevant Employment Regulation Order, which in this case is the Employment Regulation Order (Security Industry Joint Labour Committee) 2017 [S.I. No. 231 of 2017]

According to the Complainant’s submission, he is entitled, under Section 2 (14) of the above referenced ERO, to a minimum of 24 hours work per week after having completed six months service.

According to the Complainant’s evidence, he was not offered a minimum of 24 hours work in the six months period prior to his complaint.   The Complainant further submitted that this was despite him being available and informing management of his availability throughout this period.

In conclusion, it was submitted that the Complainant is seeking a decision declaring that his complaint is well-founded and requiring the Respondent to pay compensation.

CA-00031666-001:

The Respondent did not contest the basis of the Complainant’s complaint under this heading.

CA-00031666-002:

While accepting the Complainant’s evidence that he did not receive a minimum of 24 hours work in a number of the weeks claimed, the Respondent submitted, in relation to a number of the weeks in question, that the Complainant was either not available for work or was dissatisfied with the duties offered and his refusal to carry out these would have resulted in less than the minimum hours being worked on those occasions.

CA-00031666-001:

This on the evidence presented by the Complainant and the Respondent’s concession in this regard, I find that the Complainant’s claim is well-founded.

Based on the evidence submitted, I am satisfied that the Complainant worked 12 hours on each of five Sundays within the reckonable period of his claim.

Two of the dates, on which the Complainant did not receive the appropriate Sunday premium, occurred prior to 1 June 2019, when the appropriate hourly rate of pay was €11.35. Consequently, when applying the premium of 30% to this hourly rate, I find that the Complainant is entitled to a payment of €354.12, in compensation for the Respondent’s failure to pay the Sunday premium on the two dates in question.

The three remaining dates relate to the post 1 June 2019, when the applicable hourly rate of pay was €11.65. Consequently, when applying the premium of 30% to this hourly rate, I find that the complainant is entitled to a payment of €545.22, which brings the total compensation figure to €899.34.

CA-00031666-002:

From the evidence presented at the Hearing, I find that hours worked by the Complainant were less than the 24-hour minimum contained in Section 14 (3) of the ERO, in a total of six weeks during the reckonable period for the claim. The shortfall in hours worked totalled 40.5 hours.

The documentary evidence provided by the Respondent, in defence of the complaint, was such that it was not possible to accurately identify the weeks in which the Complainant was unavailable for work and/or in which may have declined work offered to him.

Given that the evidence suggests there were a number of weeks in which the provisions of Section (14) were not applied by the Respondent, I find that the Complainant would reasonably be entitled to some compensation for this breach. Having carefully considered all of the evidence adduced, I am satisfied that an amount of €375 would represent a just and equitable compensation in all the circumstances.

CA-00031666-001:

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s claim is well-founded and that the Respondent was in breach of Section 14 of the Organisation of Working Time Act, 1977. Consequently, I award an amount of €899.34 in the Complainant’s favour as just and equitable compensation for the breach of the legislation. This amount is subject to the normal deductions pertaining to salary.

CA-00031666-002:

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s claim is well-founded and I award an amount of €375 to the Complainant as just and equitable compensation in the circumstances.

Organisation of Working Time Act

S.I No. 231 of 2017

Sunday Premium

Industrial Relations Acts