Complainant

Respondent

Anonymised Parties

Security Guard

Security Company

Representatives

Barnaba Dorda SIPTU

 HR Manager HR Director

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00036336-001

25/05/2020

The Company confirmed the correct company name and the HR Manager agreed to update same on the claim form.   The dispute related to the Complaint seeking adjudication pursuant to Section 13 of the Industrial Relations Act, 1969 and states overtime was not paid for a number of years from October 2015 to July 2019.

The Complainant commenced employment from 2015 and employment ended on 5 February 2019.  The Claim was submitted on 25 May 2020.

The Complainant representative stated that even though their claim was late being submitted that should not be considered out of date as there is no timeline in the Industrial Relations Act.

The Complainant representative confirmed the Complainant was employed by the Respondent from 2015 and left the employment on 5 December 2019. 

The Complainant representative confirmed the Complainant was a diligent, hardworking employee.

The Complainant representative confirmed as per the Complainant’s contract he was given at least 48 hours of work every week. It was stated that these 48 hours of work included the Complainant’s on-call time, for which he was paid his hourly rate of pay. The on-call time was carried out during the Complainant’s hour-long break.

The Complainant representative stated that while being on-call the Complainant could not leave his place of work, in line with explanation provided by the Respondent. The Complainant representative confirmed the Complainant can confirm that almost all the time he was carrying out work-related duties during his paid on-call “break”.

The Complainant representative stated the Respondent calculated the hourly paid breaks as his working time in order to comply with his contract of employment and he was paid 48 hour a week at least. The Complainant representative stated that when calculating his normal annual leave entitlements, these hourly on call “breaks” were also calculated as working time and reflected in his holiday pay. The Complainant representative stated that on the Complainant’s payslip there was no distinction between paid on-call ‘breaks’ and normal working hours.

The Complainant representative stated that a different approach was taken by the Respondent when it came to calculating the Complainant’s overtime entitlements and, in such circumstances, breaks were subtracted from his hours of work.

The Complainant representative stated that the Complainant tried to resolve the matter at a local level, but to no avail.

The Complainant representative referred to new ERO for Security Industry that came into force in October 2015. They stated that not only it set up minimum rates of pay for security personnel, but also set circumstances in which overtime rates were to be paid. The ERO stated that:

“(3) Overtime rates shall apply as follows:

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;

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 employee in writing prior to the commencement of the roster cycle.”

The Complainant representative stated in the Complainant’s case it was important to flag at this stage that a rostered cycle shall be ‘predetermined’ and issued to the employee in writing prior to the commencement of the roster cycle. None of this happened in the Complainant’s case. The Complainant representative stated that the Respondent did not furnish the Complainant with predetermined written rostered cycle prior to any possible cycle(s). The Complainant representative stated that it was the Complainant’s contention that the Respondent determined roster cycle after specific period in such a way as to avoid paying any overtime.

The Complainant representative stated therefore, in the absence of such written predetermined roster cycle, it is their position that overtime shall be calculated on a weekly basis.

The Complainant representative stated furthermore, where employees are on-call time and considered to be at work, this period qualifies as working time. In case C303/98 known as the SIMAP case and Jaeger case C-151/02 European Court of Justice concluded that the times spent on standby (or on-call) can only be regarded as working time if employees were required to be physically present at the workplace and expect to carry out their services/duties. Thus on-call time in such circumstances constituted working time if the employees were required to be in the workplace.

The Complainant representative stated, therefore, hourly on-call paid ‘break’ should be treated as working time and calculated for the purpose of the overtime entitlements.

The Complainant representative confirmed that the Respondent did incorporate the Complainant’s paid on-call breaks for the purposes of annual leave entitlements (48 hours). Therefore, by its own actions the Respondent consented to treat all on-call time as working time.

The Complainant representative stated that given all the above, the Complainant is looking for appropriate compensation for unpaid overtime of €1,668.375, as per his calculation which would be just and equitable for such an unfair treatment.

The Respondent stated they do not have a case to answer and the case it outside the time frame permitted.  The Respondent stated that the Complainant did not work any overtime in the relevant reference period of the ERO.  

Section 13 (1) and (2) of Industrial Relations Act, 1990 states the below.

13.—(1) The Minister may from time to time appoint a person who shall be known as and is in this Act referred to as a rights commissioner to carry out the functions assigned to him by this section.

13. - (2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

(b) A rights commissioner shall not investigate a trade dispute—

(i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

 Under the Industrial Relations Act, 1990 Section 5 the time limit for taking a case is specified as below:

5.—Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851 , summary proceedings for an offence under the Industrial Relations Acts, 1946 to 1990, may be instituted within one year from the date of the offence

In accordance with the above Section 4 of the 1990 act the complaint falls outside of the timeframe and that the Complainant is not entitled to have the claim under the Industrial Relations Acts heard and a recommendation issued.   

In accordance with Section 13 of the Act I declare this complaint is not well founded based on the evidence provided and therefore I make no recommendation in favour of the Complainant.