Complainant

Respondent

Parties

Bernard  Meehan

Securway At Risk Security Group Limited Sar Security

Representatives

SIPTU

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-00045154-001

13/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00045154-002

13/07/2021

The complainant commenced work as a security officer in 2007 initially with another company but in due course in July 2020 he was transferred to the respondent. There are two complaints: one under the Payment of Wages Act, 1991 and the other under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, (the TUPE Regulations).

The complaint under the Payment of Wages Act is that the complainant has had his wages unlawfully deducted by his former employer; the respondent relating to a site allowance which has been paid ever since his employment commenced in 2007.

As a result of this he has been losing €42.12 fortnightly starting from July 17th 2021 until his resignation on May 27th.

The total amount he has lost in the six-month cognisable period between January 13th 2021 and July 12th, 2021, is €547.56. This is calculated by the site fortnightly allowance €42.12 multiplied by 13 weeks and we are seeking an award in this amount.

Under the TUPE regulation our case is as follows

The respondent has breached section 4(2) of the act on a continuing basis by failing to honour the complainant’s terms and conditions with regard to the above site allowance. We submit that each non-payment is a single and repeated breach of the TUPE regulation.

On July 17th, 2020, following his transfer he received the first pay slip from the respondent and noticed that his wages were short by €42.12 compared to previous pay slips brackets (which were submitted in evidence).

His union attempted to contact the respondent by letter, phone, and e-mail over a period of four months in late 2020 and early the following year but the company did not reply.  On January 15th, 2021, the matter was first referred to the WRC.

In January 2021 the respondent advised the union that they did not have to pay the complainant the wages in question and a hearing was held on August 6th 2021.

The employer made no submission to the hearing and did not contest the case put forward by the complainant.

A decision issued on October 19th. The complainant was awarded compensation for the lack of consultation and for breach of his terms of his conditions on the transfer and was also awarded compensation under the Payment of Wages Act.

To date this decision has not been implemented by the employer and is currently in the process of referral for enforcement.

A second case was submitted on July 12th, 2021, as the non-payment continued, and a further case was submitted in June 2022. On May 27th the complainant resigned from his employment due to the failure of his employer to pay him correctly.

In summary there is no doubt that the complainant had been in receipt of the fortnightly payment of €42.12 for 14 years and it was very clearly a part of his terms and conditions of employment. The role in respect of which it was due continued after the transfer to the respondent; specifically his responsibility for training as can be seen from materials submitted to the hearing.

Therefore, a new breach arises in respect of the fortnightly payment between January the 13th and July the 12th 2021 and the total outstanding is €547.56.

 In respect of the continuing breach of regulation 4 of the TUPE regulations it states.

‘The transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.

In this case the rights and obligations arising from the complainant’s contract of employment did not transfer to the new employer so at the point of each fortnight’s payment the employer has been in breach of the Regulations by not honouring his terms and condition conditions as set out above.

The complainant specifically asks that account be taken of the court European Court decision in Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen [1984] ECR 1891 where the CJEU made it clear that where a right grounded in European law has been infringed the judicial redress provided should not only compensate for economic loss but must provide a real deterrent against future infractions.

In conclusion we are seeking a decision that the complaint is well founded, and that the complaint would be awarded compensation for both the breach of the Payment of Wages Act and the Transfer of Undertakings Regulation 2003.

The respondent did not attend the hearing. No explanation was received for its failure to attend.

As noted above previous complaints were the subject of a decision in favour of this complainant in ADJ 31664, in which the matter of the application of the Transfer of Undertaking Regulations was addressed.

In that case, following a hearing on August 6th, 2021, the Adjudicator found that the complainant’s position was fully covered by the regulations, and so do I. She also addressed the matter of the non-payment of the allowance referred to and likewise found in the complainant’s favour (and in respect of a further matter which does not arise here).

In that hearing the respondent was represented but the person took no part in the hearing, nor did he make any submission on the matters in dispute.

That was one step better than the current case where no representative of the respondent was in attendance in any capacity.

The complainant has made his case; his entitlement to the payment and specifically to its continuation following the transfer of undertakings in July 2020 is clear and I find for him in that regard and make an award of €547.56.

The complainant has urged that I take account of the European Court decision in Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen [1984] ECR 1891 where the CJEU set out that where a right grounded in European law has been infringed the judicial redress provided should not only compensate for economic loss but must be dissuasive and provide a real deterrent against future infractions.

The actions of the current respondent are clear from the complainant’s submission above and it is not going too far to say that they appear to have demonstrated a degree of, at best indifference to, and at worst disrespect for their legal obligations in their actions and for the decision of the WRC.

They refused to engage with the complainant’s union over a protracted period, were represented, if that is the word by a person who declined to play any part in the proceedings leading to the decision in ADJ 31664 and failed entirely to attend the hearing of this case.

Further they have failed to implement the terms of ADJ 31664 and continued, up to the date of the complainant’s resignation to take account of either their clear legal obligations or the decision of the WRC.

The evidence and submissions in the case indicate a degree of wilful disregard for the law that, in my opinion, triggers the ‘Von Coulson’ principles and the necessity for a dissuasive award of compensation.

Section 10(5) of the Regulations outlines the powers of an Adjudication Officer in respect of breaches of the Regulations and in relation to breaches other that a breach of Regulation 4 (which this is not) permits an award of up to two years remuneration.

The following is the relevant extract from the ‘Von Colson’ decision.

28. … if a Member State chooses to penalize breaches of that prohibition by the award of compensation, then in order to ensure that it is effective and that it has a deterrent effect, that compensation must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation such as, for example, the reimbursement only of the expenses incurred in connection with the application. It is for the national court to interpret and apply the legislation adopted for the implementation of the directive in conformity with the requirements of Community law, in so far as it is given discretion to do so under national law.”

In the circumstances and having regard to the various consideration outlined above and the decision in the ‘Von Coulson’ case I will make an award to the complainant of €8,000 or the equivalent of approximately four months remuneration, (he was paid €493.74 weekly).

Both complaints CA-00045154-001 and 002 are well founded.

In respect of the first of these, under the Payment of Wages Act 1991 I award the complainant €547.56.

In respect of the second, under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 for the reasons set out above I award him €8,000 for the breach of his rights under the Regulations.

Payment of Wages, TUPE, Von Colson.