Complainant

Respondent

Anonymised Parties

A security guard

A provider of security services

Representatives

None 

None

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-00034907-001

27/02/2020

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

CA-00034907-002

27/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00034907-003

27/02/2020

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

CA-00034907-004

27/02/2020

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

CA-00034907-005

27/02/2020

The complainant outlined that he was underpaid for work undertaken as well as for annual leave. The complainant is paid the applicable Employment Regulation Order (‘ERO’) rate of €11.65 per hour. His hours vary according to a roster. The respondent denies the claims.

CA-00034907-001

In this Payment of Wages complaint, the complainant outlined that he was underpaid by €37.87 for the week ending the 18th December 2019. He outlined that he had been left 3.25 hours short in this week. This had been the week he was going on annual leave. On the Thursday, the complainant was asked to come in the following day and work a full shift, i.e. start at 5.45am and to finish at 7pm. He was paid on the basis of this being a relief shift, i.e. between 7am and 5pm. At the hearing, the complainant indicated he would check what hours he worked on the Friday in question.

CA-00034907-002

This is a complaint pursuant to the Payment of Wages Act regarding pay due for Thursday, 16th January 2020. The amount of the claim is €72.81. The complainant outlined that he normally worked a full shift on a Thursday, but his hours had been reduced by half this week. He denied sending a colleague home and said that this colleague had gone home at 2pm for family reasons.

The complainant outlined that he had been rostered to work for 45.5 hours but was only paid for 36 hours. He had agreed to a split-shift on the Monday of that week, and he did the second part of the shift.

The complainant outlined that on Thursday, 16th January 2020, he had started at 5.45am and was due to finish at 2pm. The colleague, however, arrived and said that he could not work the latter half of the shift. The complainant worked the remainder of the shift, and this claim relates to those hours.

CA-00034907-003

The complainant submitted that this complaint related to a breach of the Employment Regulation Order in that his holiday pay was not calculated over the previous 13 weeks of work. This led to him being underpaid.

CA-00034907-004

The complainant outlined that this complaint pursuant to the Organisation of Working Time Act related to both the late payment and the under-payment of paid annual leave. It related to annual leave commencing on the 14th December 2019 and the complainant states that he was only paid on the 18th December 2019, i.e. after the period of annual leave had commenced and in contravention of the Organisation of Working Time Act.

In respect of the underpayment, in the complaint form, the complainant cites that the shortfall was €163.10. He outlined that he had worked an average of 44.5 hours over the previous 13 weeks, meaning that he should have been paid 89 hours of holiday pay for the two weeks of annual leave. The complainant stated that he was only paid for 75 hours of holiday pay. The complainant submitted an extract of his bank statements, showing incoming payments from the respondent. The records indicate that a payment of €1,065.64 was made on the 18th December 2019.

CA-00034907-005

The complainant outlined that he was due additional wages of €1,086.08 and this ought to have been paid on the 26th February 2020. The complainant asserted that he was entitled to payment of time-and-a-half for every hour worked above 39 hours. The complainant outlined that the terms of the Employment Regulation Order from 2006 (S.I. 500/2006) were incorporated into his contract of employment. The complainant submitted that the Superior Court judgments from 2011 and 2013 (John Grace Fried Chicken and McGowan respectively) rendered the 2006 ERO ‘non-statutory’. The terms of the 2006 ERO, in particular the entitlement to overtime were now part of his contract of employment. His consent was, therefore, required to amend the terms. He had not consented to amend the overtime provision and he was, therefore, entitled to time-and-a-half for every hour worked above 39 hours.

CA-00034907-001

The respondent outlined that it paid the complainant for the hours stated on the roster and it could not see any shortfall of 3.25 hours. In this pay period, the complainant had worked 32.75 hours, including 13.25 hours on the Friday.

CA-00034907-002

The respondent outlined that a colleague worked on the same site as the complainant and had asked for shorter hours for family reasons. The respondent had rostered split shifts to accommodate this request. The complainant had agreed to split shifts, but on the day in question, the complainant had wanted to do the full shift and sent the colleague home. The respondent outlined that the complainant and the colleague had a private agreement, whereby the colleague would be paid and that the colleague would owe these hours to the complainant. At the hearing, the respondent indicated that it was only aware of the split shift on the Monday of that week and not the Thursday. In post-hearing submissions, the respondent acknowledged that the complainant was due 7.25 hours for the full shift on Thursday, 16th January 2020 and that this had since been paid to him.

CA-00034907-003

The respondent outlined that holiday pay remitted on the 18th December 2019 was calculated as 8% of the complainant’s wages. This had been done for convenience and the respondent had no issue in reverting to using a 13-week reference period.  

CA-00034907-004

The complainant was paid for 86 hours of holiday pay on the 18th December 2019. The pay slip refers to payment of 86 hours of holiday pay and 32.75 standard hours worked.

In submissions, the respondent outlined that it was incorrect for the complainant to say that he received 75 hours of holiday pay on the 18th December 2019 as he was paid 86 hours of holiday pay. The respondent outlined that 8% was used out of convenience. The respondent set out that the complainant had worked 571.50 hours in the preceding 13 weeks and was therefore entitled to 88 hours of holiday pay. He was paid for 86 hours and is therefore entitled to two additional hours.

The respondent submitted the pay slip dated the 18th December 2019, which states that 86 hours of holidays were paid (€1,001.90) as well as 32.75 standard hours worked (€384.54). The net pay stated on the pay slip is €1,065.64.

The respondent outlined that holiday pay was paid to the complainant on time. It outlined that the complainant worked a Wednesday to Tuesday roster. Payment is made on a Wednesday. The respondent outlined that the complainant was rostered off a couple of days prior to the beginning of a period of annual leave. These additional days are not annual leave. The respondent submitted that the period of leave in question commenced on the 18th December 2019 and the holiday pay was remitted to the complainant on this day.

CA-00034907-005

The respondent outlined that the complainant should not have been paid overtime as he did not work more than 39 hours in any week when averaged over six weeks. The respondent outlined that the client provided a relief to cover the respondents’ two security guards. This relief covered 52 hours of breaks over the week. While the complainant was paid for breaks, this time should not be used in the calculation of overtime. The respondent stated that its position had been confirmed by the Labour Court and WRC adjudication officers in other cases, as well as by the WRC inspectorate and an audit process.

CA-00034907-001

This is a complaint pursuant to the Payment of Wages Act in respect of a claimed underpayment on the 18th December 2019. The complainant asserted that he was underpaid as he had worked a full shift on the Friday. The respondent said that all rostered and worked hours were paid. It appears from the pay slip that the complainant was, in fact, paid the hours worked on this day.

At the end of the hearing, it was left open for the complainant to check what hours he worked on the Friday and to submit any documentation. I note that this issue was not specifically addressed by the complainant in his follow-up submissions. I have dealt with the holiday pay issue elsewhere.

I, therefore, find that the complaint is not well-founded as the complainant was paid for the rostered hours worked.

CA-00034907-002

This is a complaint pursuant to the Payment of Wages Act in respect of Thursday, 16th January 2020. The complainant outlines that he worked the full shift but was only paid for half of the shift.

The complainant and a colleague had an arrangement whereby shifts were split but the complainant might work the full shift for the colleague’s childcare reasons. In the week in question, this occurred on the Monday and the complainant has no issue with not being paid for the latter half of the shift on this day. The issue arises on the Thursday, where the complainant worked the full day. 

I find as fact that the complainant was due the full day rate for Thursday, 16th January 2020. The respondent accepted that there was an underpayment and stated that it has since paid the monies due. Given that it was not paid as of the date of complaint and the date of adjudication, I issue a decision that the €72.81 represented an underpayment, and a deduction per the Payment of Wages Act. If the respondent has since paid the complainant this amount, then this has been satisfied.

CA-00034907-003

This is a complaint pursuant to section 45A of the Industrial Relations Act, 1946 (as amended by the Industrial Relations (Amendment) Act 2012 and the Workplace Relations Act, 2015). Section 45A provides:

‘A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of an employment regulation order in relation to a worker shall do one or more of the following, namely —

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the employment regulation order, or

(c) require the employer to pay to the worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the worker’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.’

The Employment Regulation Order in question in this case is the Employment Regulation Order (Security Industry Joint Labour Committee) 2017 (S.I. 231/2017). This was the applicable ERO at the time of this complaint.

The relevant part of the ERO provides:

‘(1) Annual Leave

Annual leave entitlement shall be in accordance with the terms of the Organisation of Working Time Act 1997.

Regular rostered overtime is to be included for the purposes of holiday pay. Regular rostered overtime will be averaged over the previous 13 weeks worked, prior to the taking of annual leave.’

Section 20 of the Organisation of Working Time Act provides that an employee is entitled to be paid in advance of taking the period of annual leave and that this should be paid at the employee’s ‘normal weekly rate’. Section 20 provides that nothing in the section shall prevent parties from agreeing to terms more favourable to the employee. In cases where pay varies, ‘normal weekly rate’ is calculated as the average of the preceding 13 weeks: per the Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997 (S.I. 475/1997).

The ERO provides that holiday pay should be calculated over a reference period of 13 weeks prior to annual leave. In addition to this, I find that the complainant’s pay varied each week (as set out in the respondent’s schedule) as the complainant’s hours varied. This falls under Article 3(3) of S.I. 475/1997 and not Article 3(2).

It is clear, therefore, that the holiday pay in question was not calculated per the ERO and the Organisation of Working Time Act/Regulations. I find that the complaint is well-founded. Separately, I have found that there was a contravention of the ERO in respect of the payment of overtime. As there has been a contravention, it is appropriate to award redress. In the circumstances, I award €250. I also order that the respondent comply with the terms of the ERO.

CA-00034907-004

This is a complaint pursuant to the Organisation of Working Time Act in respect of both the underpayment and the late payment of annual leave. In respect of the underpayment, I have found that the respondent did not calculate holiday pay according to the ERO and the Organisation of Working Time Act, i.e. to use a reference period of 13 weeks. The complainant outlined that he should have been paid for 89 hours. The pay slip submitted by the respondent indicates that he was paid for 86 hours (€1,001.90). I find that this pay slip accurately records the amount paid to the complainant at this time. I do so because the net amount in the pay slip corresponds with the monies received by the complainant, as set out in his bank records.

The complainant averaged 44.5 hours in the previous 13 weeks, so he is therefore entitled to 89 hours of paid leave. The hourly rate of pay is €11.65. He should have been paid €1,036.85, and there is, therefore, a shortfall of €34.95.

The complainant asserts that the period of annual leave in question commenced on the 14th December 2019, and he was only paid for this leave on the 18th December 2019. The respondent outlined that the leave in question commenced on the 18th December 2019, and he was paid on that day.

Section 20(2) of the Organisation of Working Time Act requires that pay for annual leave be paid in advance of the annual leave. I note that an employer is required to record working time and periods of annual leave, either electronically or via a prescribed form (S.I. 473/2001). Where the employer does not have records, the onus falls on the employer to prove that there was no contravention (section 25(4) of the Act).

The complainant works and is paid for rostered hours. He is not paid for days he does not work. He is paid holiday pay for days rostered as annual leave. The parties did not submit any of their messages regarding booking this period of annual leave. They agree that the complainant took the annual leave but there is no record of when the leave started.

In the documentation relating to the split shift and the Payment of Wages complaint, I note the text messages between a manager and a colleague regarding splitting the shift with the complainant. The manager’s reply refers to the complainant, stating ‘Brilliant, he’s on hols from the 19th we’ll do the Mondays and see how it goes.’ The message is dated the 29th November 2019. This is evidence that the complainant’s annual leave was rostered to commence on the 19th December 2019.

The complainant and the director gave differing accounts of when they considered the period of paid annual leave commenced. The above evidence provides me with grounds to find that the leave commenced on the 19th December 2019. While the complainant may not have worked from the 14th December 2019, this was not the commencement of annual leave. Given that the complainant was paid on the 18th December 2019 and the annual leave commenced on the 19th December 2019, there was no contravention of section 20(2) of the Organisation of Working Time Act.

In summary, I find that there was a shortfall of €34.95 and redress is awarded in this amount. In CA-00034907-002, I have addressed the incorrect method in calculation applied by the respondent. Furthermore, I find that there was no breach in when the holiday pay was paid.

CA-00034907-005

This is a complaint pursuant to the Payment of Wages Act for overtime.

The 2006 ERO (S.I. 500/2006) provided that hours in excess of an average of 39 hours in a roster cycle were paid at a rate of time-and-a-half. The 2017 ERO provides: ‘Overtime rates shall apply as follows … (a) 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.’

In between the promulgation of these two Statutory Instrument came the judgments in John Grace Fried Chicken v The Labour Court [2011] IEHC 277 and McGowan v The Labour Court [2013] 3 IR 718. In the first, the High Court, and in the second, the Supreme Court, found that the statutory provision was unconstitutional. In John Grace Fried Chicken, the High Court held that the ERO at stake (Catering outside of Dublin) was invalid. In response, the Industrial Relations (Amendment) Act was enacted, introducing a new regime of EROs and SEOs. In NECI v The Labour Court [2021] IESC 36, the Supreme Court rejected a constitutional challenge to the Chapter providing for Sectoral Employment Orders.

I have reread all these judgments as part of my consideration of the complainant’s argument. I have also considered the 2006, 2015 and 2017 security EROs. Until 2011, the complainant could rely on the 2006 ERO in calculating his overtime entitlement. This provided that overtime became payable after 39 hours. This was not stated in the contract of employment. As a matter of law, when the ERO fell in 2011, so did the complainant’s entitlement to overtime (until, of course, the 2015 ERO was enacted).

I do not agree with the complainant that the terms of the 2006 ERO became incorporated in the contract of employment. During the time the ERO was in being, the complainant was certainly able to rely on it and it would have superseded any inferior contractual term. It was not, however, possible to deem a provision of the ERO as part of a contract of employment once EROs were found to be invalid and the contract did not provide for overtime. As things stand, the complainant’s contract of employment does not provide for overtime, but he can rely, by operation of the law, on the overtime provision set out in the 2017 ERO. This provides that overtime becomes payable when the security operative works in excess of 48 hours per week in a roster cycle.

The 2017 ERO provided that an employee should be provided with a roster cycle in writing for a minimum period of a week. It provided that a roster cycle should be specified in writing in the statement of terms given to the employee. The ERO provided that ‘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 worker in writing prior to the commencement of the roster cycle.’

The complainant outlined that the respondent operated a one-week roster, and this was stated in the contract of employment. He outlined that breaks should be included in working time as he could not leave the site. The respondent provided the complainant’s working pattern in 2020, divided into six-week periods. This indicated that while the complainant worked over 48 hours in some weeks, his average over each six-week block was below 48 hours. While they are paid, the respondent submitted that the breaks should be excluded from the calculation of overtime.

It is clear from the evidence that the respondent operates a roster cycle of one-week. This is what is stated in the contract of employment and the messages exchanged by the parties and by other employees refer to ‘next week’s roster’. The ERO provides that overtime is calculated according to the roster cycle used in the employment. In this case, the roster is for a week. An employer can only use a six-week period to average out hours where it provides a six-week roster in advance. Here, the roster provided is for each week, so an employee is entitled to overtime where they work over 48 hours in that week.

As a security guard, the complainant is not entitled to daily rest breaks. His employment is exempt from section 12 as well as sections 11 and 13 of the Organisation of Working Time Act. The ERO and the Code of Practice in SI 44/1998 provide that he is entitled to compensatory rest, for example facilities on site. In this case, this includes the attendance of a relief, although the complainant cannot leave the workplace. All this time is clearly working time and should be considered in assessing whether the complainant has worked over 48 hours per week in a roster-cycle.

In conclusion, the roster cycle in this case is one week. The question is whether the complainant worked over 48 hours in any week. The complainant is entitled to overtime per the ERO for every week that he works over 48 hours (as each roster cycle is one week).

The complaint was referred to the Workplace Relations Commission on the 27th February 2020, so the reference period is the six months prior to this date. The reference period is, therefore, the 28th August 2019 to the 27th February 2020.

Both parties provided schedules of the hours worked by the complainant in this reference period. They indicate that there were 7 weeks in which the complainant worked in excess of 48 hours. According to the respondent’s figures, a total of 42.5 hours were worked as overtime. According to the complainant’s table, it is 46.5 hours. In the 2017 ERO, overtime is paid at time and a half. The complainant’s hourly rate of pay is €11.65, so the additional pay due per hour is €5.825 (the complainant received his basic pay). If the complainant is held as having worked 42.5 hours of overtime, he is entitled to a further €247.56; if it is 46.5 hours, he is due €270.86.

In the absence of contemporaneous working time records, I make the award in accordance with the working hours set out by the complainant. I find that he is due €270.86 in unpaid overtime.

In summary, the applicable roster period is one week, so the complainant is entitled to overtime where he works over 48 hours in any one week. This arises from the 2017 ERO by operation of the law. The award of €270.86 covers the reference period in this case, the 28th August 2019 to the 27th February 2020. Separately, I have dealt with the contravention of the ERO.

CA-00034907-001

I decide that the complaint pursuant to the Payment of Wages Act is not well-founded.

CA-00034907-002

I decide that the complainant was entitled to be paid for the full day of the 16th January 2020; that there was a shortfall of €72.81 and the non-payment of this amount, as of the date of complaint and the date of the adjudication, amounted to an unlawful deduction. I decide that if this amount remains outstanding, it shall be paid by the respondent to the complainant.

CA-00034907-003

I decide that the complaint pursuant to section 45A of the Industrial Relations Act 1946 is well-founded. I order that the respondent complies with the Security industry Employment Regulation Order and that the respondent pay to the complainant redress of €250.

CA-00034907-004

I decide that the complaint pursuant to the Organisation of Working Time Act is, in part, well-founded and that the respondent shall pay to the complainant €34.95.

CA-00034907-005

I decide that the complaint pursuant to the Payment of Wages Act is well-founded and that the respondent shall pay to the complainant compensation of €270.86.

Security industry Employment Regulation Order

Overtime / working time / roster cycle