Complainant

Respondent

Anonymised Parties

A security guard

A provider of security services

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-00015924-001

21/11/2017

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

CA-00015924-002

21/11/2017

The complainant is a security guard and claims underpayment of wages, penalisation and contraventions of the Organisation of Working Time Act. The respondent denies the claims.

The complainant commenced employment with the respondent on the 16th September 2015. He is a security guard and was assigned by the respondent to provide security services at client sites. This included being stationed at building sites and he mainly worked at night.

The complainant outlined that he received a text from the respondent on the 18th March 2017 to say that his roster at a named site was cancelled. He was informed that the respondent would provide a full explanation for this on the following Monday. The complainant attended a meeting and asked a named manager for an explanation. He said he would later phone the complainant, but this never happened. The complainant further tried contacting the manager. The meeting was held because of an incident at the site where someone failed to close a gate.

The complainant outlined that he next worked for the respondent on the 7th April 2017 and was assigned to a different site. He was never to work again at the site he was initially assigned to work on the 18th March 2017. The complainant said that the respondent had misled him in cancelling this roster and not saying why. For three weeks, the complainant was not given an explanation and was not assigned work. This was only resolved when the complainant sought assistance from the Citizens Information Centre.

The complainant stated that his claim was not getting the full roster between April and September 2017. The complainant said that the respondent sought to assign him hours elsewhere but could not do so as his roster was “blocked”. He was advised to contact a named manager. He had earned €540 per week at the previous client site, working 50 or 60 hours per week. The complainant outlined that since April 2017, his hours have been reduced. Only half of his shifts were restored to him. He submitted that this amounted to dismissal. He had previously worked 48 to 60 hours per week over four to six days. After April 2017, there were some weeks where he was not allocated any hours of work and other weeks where he worked 45 hours.

The complainant said that he was not paid the overtime pay he was due, for example he was due overtime on the 4th August 2017 when he worked 69 hours. Overtime should be paid after 42 hours of work, but none was paid at any stage.

On the 30th August 2017, the complainant was invited to an investigation meeting. He received the respondent’s email but not the posted letter. He answered the allegations. This arose following a wall being damaged at a client site. The complainant provided his explanation and refused to sign the respondent’s note as it was inaccurate. He was later called to a disciplinary meeting, but never received the warning. This warning was for six months so would have expired in April 2018. Something similar had occurred in January 2017 when he was issued with a warning, but the warning was never sent to him.

The complainant said that his roster was cancelled in September 2017 and he was called to an investigation meeting. He described this as a punishment. At this stage, the complainant was working nine hours a week and could not survive. He, therefore, asked for his holiday pay. He was allocated 53 hours in the next two weeks.

Commenting on the pay slip for the 29th September 2017, the complainant said that the overtime pay at 1.5 times was not paid (an amount of €607.75 for 110 hours of overtime), despite this being stated on the payslip. He received a different pay slip at the time and the lower pay is reflected in his bank account records.

The complainant said that he tried to raise his roster issues via the grievance procedure. The respondent never answered his emails. While the respondent HR manager said that he had not exhausted the grievance procedure, his complaints were not processed.

The complainant said that he was sent to work without proper equipment, citing a named client site. This was a night shift where he was not provided with protective equipment or shelter. He was left in the rain without access to bathroom facilities. He was expected to sit in a colleague’s car, but the colleague refused to allow him sit in his car. This occurred in November 2017. He did not work the three further days at this site and was paid for one day.

The complainant denied the respondent’s assertion that he was refusing shifts. He had an arrangement to work weekends with another security firm.

The complainant outlined that he requested annual leave on two occasions in 2017 but did not get approval from the respondent. There was a similar problem in March 2018. The process was that the complainant would email a designated email address but never received a response. He then submitted the request to the roster department.

The complainant said that one period of annual leave was delayed until the end of January 2017 because others had been approved for leave. In March 2018, the complainant requested a block of annual leave of one month but was informed that he could take a maximum period of two weeks. The respondent informed him that the annual leave was not approved, but he was later paid for the time off.

The complainant outlined that he had to work every single public holiday as others were facilitated with days off. This included Christmas Day 2017 and New Year’s Day 2018. He had wanted days off in Christmas 2017 but had to work on these days.

In reply to the respondent, the complainant said that the respondent had offered some additional hours after September 2017. This offer was made a few hours before the start of the shift in question. The complainant was assigned less than 24 hours per week over several weeks. There was the shortfall in April 2017 where he was paid for 3.32 public holiday days. He was assigned 12 hours in September 2017 and there were shortfalls in the months of October 2017 and January and February 2018.

The complainant said that he emailed grievances to the respondent. He offered to submit them to the Workplace Relations Commission following this adjudication.

In submissions, the respondent outlined that it paid for breaks and they were provided through the standard operating procedures available at each client site. Breaks were also recorded.

The respondent outlined that the complainant was asked to attend an investigation meeting and then a disciplinary meeting. He was offered the opportunity to have representation at the latter meeting. He was asked to sign the minutes after each meeting.

The respondent submitted that hours would only have been taken off the complainant had he refused the shifts or if the client requested his removal. The ERO requires that the complainant be given three days’ notice of their roster, subject to exceptional circumstances.

The respondent submitted “historical” pay slips for the period of the 7th April 2017 to the 30th March 2018. There are 49 pay slips. It exhibits the payslip for the 29th September 2017 which includes payment of €607.75 for 110 hours of overtime at time and a half. The respondent submits that it paid the amounts stated in payslip 39 in subsequent payments. The manual payments were made for €178.44 on the 27th September 2017 and €285.23 on the 29th September 2017 and €140.89 on the 20th June 2018. The respondent submitted screen shots relating to these payments.

The respondent submitted client invoice sheets, indicating the site, start and finish times and the number of hours worked by the complainant. This shows that the complainant generally worked nights, often over 12-hour shifts.

The respondent submits the documents relating to the disciplinary hearing of the 8th September 2017. The respondent issued the complainant with a written warning to last for six months. This arose following an incident on the 15th August 2017 where the complainant shook a vending machine.

The respondent submits emails regarding occasions where the complainant “refused” hours. They relate to times in late 2017 and early 2018 when the complainant was rostered for hours on Friday and Saturdays when he worked for another employer. There is correspondence regarding whether the complainant obtained approval for annual leave between the 15th March and the 4th April 2018.

The HR manager outlined that she could not see a shortfall in pay anywhere. The practice was that overtime is paid where the employee works over 48 hours, calculated over a six-week reference period. She outlined that there had been a recent WRC inspection and no issues raised regarding this practice. She said that the complainant was paid in line with the Employment Regulation Order for the security industry. She said that the complainant had found other work, so it retained him on the minimum of 24 hours per week.

The HR Manager outlined that its contracts of employment are not site specific. It assigns security work according to changing contracts. She said that it won and also lost contracts. It had lost the security contract where the complainant had been assigned to work in April 2017. The site where the complainant was assigned night work was temporary cover. She said that there were occasions where the security guard would have to use their car or alternative, nearby resources. The respondent submitted that the assignment instructions for the site referred to facilities being available at another, nearby site.

The HR Manager said that she conducted the September 2017 investigation. The complainant was later informed that a formal warning issued. This included the right to appeal. She said that the respondent did not have a copy of the warning on file. She said offered regular hours to the complainant and did not receive any grievance from him.

The HR Manager outlined after September 2017, the complainant was not fully available as required by his contract. He could not, therefore, be allocated full hours. The respondent could not guarantee specific hours and had to go below the ERO minimum as the complainant was not fully flexible.

CA-00015924-001

This is a complaint pursuant to the Payment of Wages Act. The complaint was referred on the 21st November 2017, so the cognisable period is the 22nd May to the 21st November 2017. The complainant refers to pay due in March 2017 and seeks an extension of time as he first sought to resolve the issue internally.

I do not grant the extension of time beyond the cognisable period set out above. The well-established authorities hold that the employee must have reasonable cause that explains and excuses delay. Raising a matter internally does not excuse delay.

As noted above, the documentation related to this employment is unsatisfactory. I have reviewed four sources of information: the historical pay slips and pay roll summaries submitted by the respondent and the emailed pay slip and bank records submitted by the complainant. The pay slips submitted by the parties are contradictory, most starkly for pay period 39 (the respondent’s version shows a net payment of €604.56 while the complainant’s pay slip shows a net payment of €178.44). This situation is further complicated as the remittances actually paid to the complainant do not match any pay slip.

This lack of clarity arises because of the nature of the employment; the hours vary and the pay changes according to the number of hours and any entitlement to premium pay (overtime, Sunday, public holidays etc).

A third source of opaqueness is the stark contradiction between historical pay slips and the document emailed to the complainant. This may be explained, perhaps, by the historical pay slips accounting for premium pay paid in separate remittances and retrospectively accounted for in pay slips. This explanation matches the fact that remittances are made bearing the same reference but paid on different days.

The complainant has helpfully submitted his bank records from the 6th July to the 2nd November 2017. As is clear from the above comments, they are the most reliable record of what was paid to the complainant in this time period. I assess whether there is any shortfall in what the complainant was due according to the pay slips (both historical and email) and the payroll summary documentation.

The legal burden is on the complainant to show that there has been a shortfall or deduction in the wages paid to him, for example through work records, pay slips or bank records. In this case, the complainant has submitted the email pay slip for pay period 39 as well as his bank records. He cites other occasions, for example the 4th August and 25th December 2017 and the 1st January 2018. Once the complainant has pointed to a shortfall or deduction, it falls on the respondent to show that the complainant has been paid the wages properly payable.

Having reviewed the documentation, I find that the bank records and historical pay slips correlate, except there is no matching pay slip for the amount of €494.01 received by the complainant on the 7th September 2017. There is no pay slip for week 37. As already noted, there is the significant discrepancy between the €178.44 paid to the complainant on the 28th September 2017 (matching the email pay slip) and the amount of €604.56 stated in the historical pay slip. On the 2nd October, the complainant was paid €285.23, but there is no matching pay slip (as identified by the respondent in a post-hearing submission).

I find that the complainant is entitled to recover for the amount missing in pay period 39, i.e. €426.12. According to the respondent’s own document, the complainant ought to have been paid €604.56, when he was actually paid €178.44 (as reflected in the emailed pay slip). I award the complainant the amount not paid to him on the 28th September 2017.

While the respondent referred to €285.23 paid on the 29th September 2017 and €140.89 paid on the 20th June 2018 (of which I have no record), I have no pay slips to ascertain whether this was the payment of wages (rather than, for example, the reimbursement of expenses) or payment due for another pay period. The screenshot from bank remittances are not equivalent to pay slips. The complainant has established that there was a shortfall of €426.12 and the respondent has not established through pay records that these monies were paid.

I have gone through the rest of the documentation, including the weeks set out in the handwritten submission. I have checked the records for the 4th August and 25th December 2017 and the 1st January 2018. It appears to me that payment was made on these occasions and there is no shortfall or deduction in pay. I do not have bank records to indicate otherwise.

CA-00015924-002

This is a complaint of penalisation pursuant to the Organisation of Working Time Act. The complainant sets out that his hours of work were reduced after he raised his hours of work and pay and those of his colleagues.

Having considered the evidence and submissions of the parties, I find that the complaint is not well-founded. I find that there is insufficient evidence that the three-week period where the complainant was not allocated hours was related to any issue raised by the complainant. I note that the respondent has not provided an explanation for this change, but nor has the complainant pointed to any chronology that suggests such penalisation. The complainant has received redress for the loss of hours (see CA-00014940-007). His hours fluctuated up and down after that point and this does not indicate penalisation of the complainant.

CA-00015924-001

I decide that this complaint pursuant to the Payment of Wages Act is well-founded and I direct the respondent pay to the complainant compensation of €426.12.

CA-00015924-002

I find that the complaint pursuant to the Organisation of Working Time Act is not well-founded.

Security guard / Employment Regulation Order

Payment of Wages Act

Organisation of Working Time Act / penalisation