Complainant

Respondent

Parties

Muhammad  Iqbal

Elite Services Security and FacilitiesManagment Ltd

Representatives

  self

 No show

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00047605-001

13/12/2021

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

CA-00049718-001

14/04/2022

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

CA-00049718-002

14/04/2022

The Complainant on the 13th of December 2021 lodges his complaint form and details 1 complaint brought under the Minimum Notice and Terms of Employment Act 1973 as amended.

The Complainant is originally from Pakistan and requires interpreter assistance. Both the Complainant and interpreter gave sworn evidence to the tribunal.

The Employer acknowledged receipt of the complaint form on the 6th of January 2022:

Dear Sir/Madam,

We have received the letter and complaints form for the above complaint from Muhammad Iqbal.

I will be the representative for the company for this case and the person handling the complaint. Can all correspondence please be emailed to myself from this point on please?

I have also attached evidence showing that the balance of the 2 weeks’ notice pay was paid in lieu of notice along with the redundancy letters throughout the process.

If you need any further information, please let me know.

Kind regards,

Emma Green

Human Resource Manager

Elite Services Security & Facilities Management

The complaint form was subsequently amended on the 14th of April 2022 and concerned pay and the alleged failure of the employer to pay overtime as per the relevant Employment Regulation Order.

On or about WE 1st of December 2019 the employee receives a statement of his conditions that will transfer to Elite Security and relevant to this complaint is the term that overtime will be paid as per the Employment Regulation Order relevant to this sector. He works as a security guard.

On the same facts he brings two complaints made under two separate Acts; the Payment of Wages Act 1991 as amended and the Industrial Relations Act 1946 as amended.

  His employment ended (as communicated to him by his employer) on:

Final details of the redundancy payment which will be available to you are included overleaf. This payment includes payment for annual leave accrued and 2 weeks’ notice pay. Your last day of work was therefore 11/11/2021.

His contractual end date is therefore 25th of November 2021. He has 6 months from the date of the continuing breach to lodge a complaint. His amended form was lodged on the 14th of April 2022, which is within the 6 months’ time frame for making a complaint as the breach continued or about the 11th of November 2021.

The relevant period of alleged unlawful deductions continued to the 11th of November 2021 which was his last working day.  The breach of the ERO related to the nonpayment of overtime for hours worked in excess of 48 hours.

The Complainant cannot seek double recovery; therefore, the Complaint is determined under the 1946 Industrial Relations Act as amended.

The tribunal has had regard to the fact that the Complainant is a non-national who requires assistance to communicate his case through translation.

The Complainant has submitted evidence with reference to a transfer statement that details his terms and conditions and per the ERO that his overtime hours would be paid at 1.5 times on transfer to Elite Services. That his standard weekly hours are 39 hours per week and weekly hours over what is prescribed in the ERO should be paid at an overtime rate of 1.5 times his basic rate.

The Employer failed to attend at the hearing.

I am satisfied that the Employer was notified of the time, date and venue of the hearing and failed to attend so that they could respond to the allegation that they failed to apply the terms of the ERO regarding the payment of overtime:

EMPLOYMENT REGULATION ORDER (SECURITY INDUSTRY JOINT LABOUR COMMITTEE) 2017 S.I. No. 231 of 2017 states at section 1 (3):

3. 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;

(b) 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.

His employment ended (as communicated to him by his employer) on:

Final details of the redundancy payment which will be available to you are included overleaf. This payment includes payment for annual leave accrued and 2 weeks’ notice pay. Your last day of work was therefore 11/11/2021.

His contractual end date is therefore 25th of November 2021.  The relevant period of alleged unlawful deductions continued to the 11th of November 2021 which was his last working day.

The tribunal has had regard to the fact that the Complainant is a non-national who requires assistance to communicate his case through translation.

Based on the payslips opened to the tribunal and sworn evidence given by the Complainant overtime has not been applied by the Employer as set out in the ERO. As the Employer failed to attend in these circumstances the evidence of the Complainant must be accepted that a breach of ERO has occurred concerning the payment of overtime.

I determine that the complaint is well founded and find that the Employer breached the ERO term concerning the payment of overtime for hours worked in excess of an average 48 hours per week in the roster cycle prescribed by the ERO. I will address the matter under section 45 A of the Industrial Relations Act 1946.

CA-00047605-001

On the face of the records and the subsequent amended complaint form, it would appear the Complainant did in fact receive his notice. This complaint is not well founded.

CA-00049718-001

This Complainant references section 45 A of the Industrial Relations Act 1946.

This complaint is well founded because the Employer has failed to comply with EMPLOYMENT REGULATION ORDER (SECURITY INDUSTRY JOINT LABOUR COMMITTEE) 2017 S.I. No. 231 of 2017  at section 1 (3):

3. 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;

 And has failed to apply the payment of time and a half to hours worked in excess of an average 48 hours per week in the roster cycle.

Section 45 A states:

45A. 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

As I have determined that the complaint is well founded, I require the employer to pay compensation of €3000 for breach of the Order being an amount that is just and equitable having regard to all the circumstances of this case and the fact that the breach was ongoing.

CA-00049718-002

This complaint is also brought under the Payment of Wages Act 1991 as amended.

The tribunal has had regard to the fact that the Complainant is a non-national who requires assistance to communicate his case through translation. The Complainant on similar facts has brought a complaint under Section 45 A of the Industrial Relations Act 1946 and cannot pursue the complaint under the Payment of Wages as it would amount to double recovery.

  Overtime Rate-ERO