Complainant

Respondent

Anonymised Parties

A Driver

Security Business

Representatives

Diarmuid Long,  Siptu - Works Rights Centre

 No Appearance by or on behalf of the Employer

Act

Dispute Reference No.

Date of Receipt

Section 13, Industrial Relations Act, 1969

CA-000448850-001

30 June 2021

On 30 June 2021 the Workers Union, SIPTU referred a dispute to the WRC on behalf of the Worker, a Driver in this case.

The Worker is seeking a Recommendation that retrospection of pay agreed with his employer be paid to him in line with the assurances he received.

On 16 July 2021, the Employer, in the case, a Security Company was notified of the dispute. As the Employer did not raise an objection to an investigation, the case was put forward for an Adjudication hearing.

Parties were notified of the hearing to take place on 4 May 2022, which was subsequently adjourned at the behest of the Employer. The case was relisted for 22 July 2022 and parties were notified of same on 18 May.

The Union submitted a comprehensive written submission. The Employer did not file a response on the claim and the only record of participation rests on the postponement granted in May 2022.

I allowed for the 5-day waiting period just in case the Employer made contact in the case.

At the time of writing, I have not received any documentation or explanation for Employers nonappearance at hearing.

The Union outlined the case on behalf of the Worker in the case. He had been a Driver employed across a range of linked businesses since 27 August. 2001. He worked full time in return for a weekly gross pay of €625.00. The employment is governed by an SEO, but the Union clarified that this claim is brought under Section 13, Industrial Relations Act, 1969 and a Recommendation sought to address retrospection owed at 1421 hours @30 cents per hour June 2019 to January 2020

The worker is based in the Patrol; and Response section of the Company, where a 30 cent per hour increase in wagers was applied under the ERO for the Industry. There was a delay in the Company making good this payment as the Company expressed a view that the Drivers already earned in excess of JLC rates. That was later resolved by way of a clarifying letter from the company dated 6 September 2019.

An historical arrangement prevailed at the business where P and R division maintained an enhanced payment arrangement.

1 a specific P and R allowance for all staff working in the Division of €14.40 per week (30 cents x 48 hrs)

2 Hourly rates would remain as is

3 Allowance would not be portable

The upward alignment was paid from January 2020, but retrospection to June 2019 was not paid.

The Employer gave an undertaking that each employee would be written to and sign off secured.

The increase was eventually paid to the P and R Drivers in January 2020 and was retrospective to June 2019.

The Complainant did not receive the retrospection in line with his colleagues and sought a favourable recommendation for payment.

The claim is quantified as €426.30 based on 1421 hours.

The matter was raised locally by the Union and the Employer gave an undertaking to review, nothing followed. The Union contend that the Worker was unfairly and unreasonably omitted from this payment.

During the course of the hearing, the Worker confirmed that he had received an assurance from the Union that the retrospection payment for him had been signed off as approved by the Managing Director. He exhibited some documents of engagement from March, 2020 .

He followed this up as requested by a manager and did not make any progress. He could not understand how his fellow colleagues received retrospection and he  had not. He was disappointed in how he was treated.

There was no appearance by or on behalf of the Employer at hearing.

The Employer has not filed a response to the claim.

I am satisfied that the Employer is properly on notice of the time date and location of the In Person hearing as the notification of hearing issued to the address to which the notification of postponement landed in the same case in May 2022.

I am disappointed that the Employer chose not to attend as the Worker is in live employment and this is a Statutory hearing of a dispute in the Workplace and serves both party attendance.

I have been requested to investigate a claim for retrospection June 2019 to January 2020 which has not been met by a response by the Employer in the case.

I am satisfied that the Employer was on full notice of the hearing and chose to attend.

It is not for me to unravel the ERO for the Security Industry in this case.

Instead, I have been asked to focus on a claim for parity with the follow P and R drivers, some of whom have already left the business and having received the back money.

I am satisfied that the Union on behalf of the Worker did lodge a grievance with the Employer and this remains unresolved before me.

I read the Union submission and listened carefully to the Worker as he explained his described legitimate expectation around receiving the retrospection.

I accept that the worker, in the absence of an alternative argument by the Employer, is entitled to rely on his legitimate expectation of payment of retrospection June 2019 to January 2020. He has assured me that he was present in the workforce throughout  this period.

In light of these circumstances, I find it both fair and reasonable that the Worker receive this retrospection.

I find merit in his dispute.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I have found merit in this dispute.

I find that the worker can rely on his legitimate expectation in respect of the 6-month retrospection at 30 cents per hour to total €426.30. I order the Employer to make this payment within 2 weeks of receipt of this Recommendation. I would also add a further order of €300.00 in respect of the inequitable treatment and delay in resolving this matter.

I award the Worker the sum in compensation of €726.30 to be paid within two weeks of receipt of this Recommendation.

Retrospection of Pay