Complainant

Respondent

Anonymised Parties

A Security Worker

A Security Company

Representatives

SIPTU

John Barry Management Support Services (Ireland) Ltd

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-00016628-001

04/01/2018

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

CA-00016628-002

04/01/2018

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

CA-00016628-003

04/01/2018

The complainant detailed that CA-00016628-001 and CA-00016628-003 had been withdrawn.

The only remaining complaint was with regard to the alleged non-payment of minimum shift/duty hours as per SI 231 of 2017, Employment Regulation Order (ERO).

This claim was withdrawn.

The complainant detailed that his terms and conditions are provided for under the current ERO in place for the security sector.

It was detailed that the complainant was rostered to work twenty shifts of two hours’ duration (0800-10:00) at the premises of a client between July 2017 and January 2018. The applicable hourly rate was €11.05 and the complainant received €442 for this work. It was detailed that an additional €442 was owing to the complainant as per the ERO which details

“When a security worker is called in to carry out a shift/duty comprising of less than four hours, this will attract a minimum of four hours’ pay”.

The respondent has failed to pay this additional amount   as they appear to suggest that as the hours were rostered, the complainant is not entitled to “a minimum of four hours’ pay”. It was detailed that the respondent is the only respondent in the sector that the complainant is aware of that does not apply this rate to workers who are rostered to work.

The complainant outlined that the above section of the ERO is referred to as Minimum Shift/Duty Hours and that the subsection makes no provision for any minimum notice.

The hours worked by the complainant were not in dispute.

It was detailed that the complainant had been rostered to work 2 hours in the morning for which he had been paid for appropriately.

It was outlined that the ERO specifically refers to “when a worker is called in” and that the complainant had not been “called in”. The respondent contends that a person who is “called in” is someone who is not on duty at that time and who has not been rostered to work those hours.

The respondent submitted that for the claim to succeed there would need to have been a legitimate claim that an unlawful deduction had been made and that there must be payment “properly payable” to the complainant.

SI 231/2017 sets out terms and conditions of employment for the security sector and it was not in dispute that the complainant is considered a security operative and the respondent is considered a security firm within the meaning of the SI.

Section 20 details

(20) Minimum Shift/Duty Hours

When a security worker is called in to carry out a shift/duty comprising of less than four hours, this will attract a minimum of fours’ hours’ pay.

Section 1(1) of the Act defines wages as meaning “any sums payable to the employee by the employer in connection with his employment, including—

( a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,

Section 5(1) of the Act provides:

“(1) An employer shall not make a deduction from the wages of an employee   (or receive any payment from an employee) unless—  (a) the deduction (or payment) is required or authorised to be made by virtue   of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or   authorised to be made by virtue of a term of the employee’s contract of   employment included in the contract before, and in force at the time of, the   deduction or payment, or

(c) in the case of a deduction, the employee has   given his prior consent in writing to it.”

Section 5(6) details

( a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

( b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The respondent details that the complainant was rostered and therefore, the hours were not unforeseen, and that “called in” relates to an emergency/unforeseen event.   The complainant disputes same and details that other security firms do not apply Section 20 in the manner that the said respondent applies it, that the respondent is not maintaining the spirit and intent of the SI and that the Section heading “Minimum Shift/Duty Hours” does not make a reference to any minimum notice that might trigger this section.

In McGrath v McDermott [1988] IR258, Finlay CJ detailed that “the courts have not got a function to add to or to leave from express statutory provisions so as to achieve the objectives which the Court may seem desirable”. 

It is also noted in Dodd’s book  on Statutory Interpretation in Ireland, “the fundamental object of all interpretation is to give effect to the intention of the legislature” and that “the first consideration is to give the words used their literal meaning”.  

Having considered all the evidence including the literal meaning of the words in the SI, and having examined what is properly payable to the employee, I find that the complaint is well founded and I order the respondent to pay the complainant €442.

This claim was withdrawn.

CA-00016628-002

I find that the complaint is well founded and I order the respondent to pay the complainant €442.

Payment of wages