Complainant

Respondent

Anonymised Parties

Security Officer

Security Company

Representatives

Paul Henry SIPTU

 Hugh Hegarty MSS

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-00035394-001

24/03/2020

The Complainant was employed as a Security Officer from 11th June 2011 to 5th February 2020. He was paid €11.65 per hour and worked 39 hours per week. He has claimed that he was not paid for weeks 3/1/2020 to 5/2/2020. The Respondent has rejected this claim.

The Complainant submitted a letter of resignation by e-mail on 3rd January 2020. HR responded that they wanted a meeting to discuss the concerns and issues raised by him in his resignation letter. HR were anxious that the Complainant had not resigned in haste. They were anxious that he had time to reconsider his decision to resign and they advised him that they would not process his P45 request until they had a response from him. By email on 6th January, he accepted the offer of a meeting. HR replied that “you wish to retract your resignation and proceed with the Grievance Meeting”, which took place on 9th January. He was dissatisfied with outcome of that meeting and submitted another resignation e-mail on 5th February. He was not paid for the period 3rd January to 5th February 2020.

It was fully accepted by both parties that his resignation was retracted. So therefore, he remained an employee until the 5th February 2020. It follows that he was entitled to be paid the agreed 39 hours per week at the rate of €11.65 per hour.  There were a total of 192 hours and it equates to €2,236.80 gross. This claim is well founded and so the amount claimed should be paid.

The claim relates to a period between the 3rd January and 5th February 2020, where by the claimant is alleging that he was not paid. It is the respondent’s position that the claimant is not entitled to the hours for which he is claiming. He did not attend work at any stage during the period for which he is referencing and as such was not entitled to be paid. The claimant did not work the hours for which he is claiming, and as such is not wages properly payable under the terms of his contract and thus not properly payable under the under the Payment of Wages Act.

He began his employment with the respondent on or about 11 June 2011, as a security officer. He was employed on a number of sites and at the time that he was claiming non-payment of wages his hourly rate, was €11.65 per hour in line with the current ERO for the security industry.

On or about the 2nd January 2020 the claimant issued a letter to the HR department tendering his resignation. In addition, the resignation letter outlined that the claimant had a number of grievances dating back to 2015. His grievance letter stated he was resigning due to the grievances and further stated that it was due to the grievances that he was leaving. He was written to by the HR Department and invited to reconsider his resignation and have his grievances dealt with through the internal grievance procedure. He accepted this and went through the grievance procedure. However, as he had resigned with no notice and did not attend for work the client, did not wish for him to return to site. It needs to be noted at this point that it is standard within the industry that where access to site is removed a security officer may find themselves in between sites, for a period of time, until such a time as alternative work can be sourced. He went through the grievance procedure, in the following weeks, and the outcome of the grievance was issued to him on or about the 3rd February 2020. In the outcome of the claimant’s grievance, he was offered a temporary posting as this temporary work had just become available due to the illness of another security officer. He resigned his position again on the 5th February 2020.

The claimant has alleged that the respondent has not paid him or has paid him less than the amount due. Specifically, he claims that he was not paid his contractual hours, of 78 hours per fortnight. However, it is their submission that his terms and conditions of employment specifically states that his “continual employment is conditional on and subject to client approval” this is clear and a term of the employment of any security officer who works on third party sites. When he commenced employment, it was then as it was in period for which the claimant is claiming, that his employment was subject to and conditional upon ongoing client approval. He has outlined in his submission that he was claiming for hours not worked. In addition, it would be prudent to note at this stage that the reason he was removed from the roster in the first place was his resignation with immediate effect. Bearing in mind he was obliged to give a minimum of one weeks’ notice, for which he did not allow when he tendered his resignation with immediate effect. He submitted that he was due to be paid for his contractual 78 hours per fortnight or 39 hours per week. However, it is clear from the terms and conditions of employment that he was hired for up to 39 hours per week. And that within reason was not entitled to expect that number of hours. It was pointed out that he at no time within the referenced period of the 3rd January 2020 to the 5th February 2020 even once contacted the respondent requesting hours. He has not provided any evidence nor is there of a single email or reference to a phone call or text message to either his manager or the HR department who was dealing with his grievance during that period of time. It is the Respondent’s position that according to section 5(6) of the Payment of Wages Act, 1991 the wages for which the claimant is seeking were not properly payable, and as such the claim is not well founded.

In conclusion they submit that he is not entitled to wages for hours for which he did not work, in a circumstance where he resigned with no notice causing a situation where by the client of the site for which he was assigned requested his removal from site. It is submitted that where the situation was entirely of his own making, and where the loss was caused a direct result of his own actions, namely resigning without notice, that rewarding a claimant for non-payment of wages in such circumstances would be unfair to the respondent and unjustly enriching the claimant.

I note that the contract of employment states that work on a site is conditional on the client approval.

I note that as the Complainant had resigned originally, without notice the Client did not want him on that site.

I find that it was accepted by both parties that his original resignation on 3rd January was retracted.

I note that the meeting with the company to discuss his grievances took place on 9th January.

I note that the outcome of the grievance investigation was on 3rd February and he was offered temporary employment then.

I note that there was no arrangement or discussion regarding hours of work during this period 3rd January 2020 to 5th February 2020.  

I note that the Complainant never contacted the company seeking hours of work, either by text, call or email, yet he sought to be paid for that period of time.

I note that in all his employment he was always paid in full for 39 hours per week.

I find that once the Respondent had accepted the Complainant’s retraction of his resignation and he was continuing in employment, they should have engaged with him regarding alternative work.

I note that they did so after the outcome of the grievance investigation on 3rd February but didn’t do so after the retraction of the resignation on 3rd January 2020.

I find that once his resignation was retracted, he was in continuous employment and would have expected to be treated as normal, which was to be offered work and paid each fortnight.

I find that the Respondent did not inform him that they had no work due to the Client refusing to have him return to that site.

I note that they did not rely upon the clause in the contract of employment, which stated that the work on a site is conditional on the client’s approval.

I find that the Complainant had a legitimate expectation of being paid because he had always been paid in full.

I find that he had formed that view based on custom and practice that he should be paid.

I find that he believed that he had an implied term in his contract that he would be paid.

Therefore, I find that he was entitled to the monies claimed, as they were wages properly payable.

For the above stated reasons, I have decided that the Complainant was entitled to be paid for the period 3rd January 2020 to 5th February 2020, a sum amounting to €2,236.80 gross.

I have decided that this claim is well founded.

I have decided that the Respondent should pay the Complainant €2,236.80 less statutory deductions, within six weeks of the date below.  

Wages owing during grievance investigation after a resignation was retracted