ADJ-00031814

Complainant

Respondent

Parties

Virginijus  Vydmantas

Ocs One Complete Solution Limited

Representatives

  N/A

Cian Conboy, IBEC

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-00042289-001

03/02/2021

The Complainant commenced employment with the Respondent on 13 July 2015 in the role of Security Officer and earns a rate of €11.65 per hour. He asserted firstly that he did not receive his full holiday entitlements in respect of his overtime payments and also claimed that he did not receive his annual leave entitlements in respect of his night allowances.

The Complainant highlighted in his evidence that he did not receive his full holiday payment in respect of his overtime or any holiday payment in respect of his night allowances while he was on annual leave in periods 20 and 24 of 2020.

The Respondent agreed that the Complainant did not receive his full holiday payment in respect of his overtime payments. It was asserted that he is not entitled to any holiday payments in respect of his night allowances. The Respondent’s witness said that it has been the company’s practice not to include night allowance in the holiday payments and asserted that this is standard across the security industry.

The Law

The Payment of Wages Act, 1991, s. 5(6) states that:

“Where (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 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 Organisation of Working Time Act,1997 s. 20 states that:

(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(3) Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of, and the pay in respect of, his or her annual leave.

(4) In this section “normal weekly rate” means the normal weekly rate of the employee concerned’s pay determined in accordance with regulations made by the Minister for the purposes of this section.

The Regulation relevant for determining the normal weekly rate of the employee is S.I 475 of 1997:

3. (1) The normal weekly rate of an employee's pay, for the purposes of sections 20 and 23 of the Act (hereafter in this Regulation referred to as the "relevant sections"), shall be determined in accordance with the following provisions of this Regulation.

(2) If the employee concerned's pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.

(3) If the employee concerned's pay is not calculated wholly by reference to any of the matters referred to in paragraph (2) of this Regulation, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum that is equal to the average weekly pay (excluding any pay for overtime) of the employee calculated over—

(a) the period of 13 weeks ending immediately before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs,

or

(b) if no time was worked by the employee during that period, over the period of 13 weeks ending on the day on which time was last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.

Findings

While this complaint might have been be more appropriately referred as an alleged breach of the Organisation of Working Act 1997, I am satisfied, having reviewed s. 5(6) of the Payment of Wages Act, 1991, as outlined above, that I can make a decision in relation to the complaint as referred because it relates to wages that are “properly payable”.

I note that the Complainant highlighted in his evidence that he did not receive his full holiday payment in respect of his overtime or any holiday payment in respect of his night allowances while he was on annual leave in period 20 and 24.

While the Respondent accepted in evidence that he was underpaid by €93.67 given that his overtime entitlements were not fully included in his holiday pay, and I find that this is correct, there was a dispute between the parties over whether or not the night allowances should also have been included in the holiday pay.

I note that the ERO (Security Industry Joint Labour Committee) 2006, the terms of which the Respondent stated that the Complainant is still employed under, stipulates that “Annual leave shall be in accordance with the provisions of the Organisation of Working Time Act 1997”.

Having regard to both this provision as well as s. 20 and SI 475 of the Act, outlined above, I find the Complainant is entitled to have the night allowances included in his holiday pay given that this allowance was paid to him every week and did not vary in relation to the work that he did.

Given that he was paid for 13 days annual leave in weeks 20 and 24, and that he receives €16.80 in respect of each night allowance, I find that the additional amount he should have received by way of his annual leave in respect of the night allowances is €218.40.

I find that the complaint is well founded and that the Complainant should be paid €312.07. This payment is subject to taxation and the normal statutory deductions.

Night allowances; overtime; holiday pay;