Complainant

Respondent

Anonymised Parties

A Security Guard

A Security Company

Representatives

Self-represented 

 Self-represented 

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-00051279-001

23/06/2022

The complainant has worked as a security guard for the respondent company since March 2009.  His hourly rate is now €11.65.  Since 2015, when he took over some of the duties of a retired colleague, he has worked 46.25 hours every week.  In breach of his contract of employment, he has been paid a flat hourly rate and not the overtime rate for 7.25 hours a week, that is, the hours in excess of 39 hours a week.  He submitted this complaint to the WRC on June 23rd 2022.  In November, the respondent started paying him overtime pay.  He claims that he is entitled to overtime pay for the seven years from October 2015 until the issue was rectified in November 2022.  He estimates his loss of earnings at approximately €12,000 gross.

The respondent has conceded that there is an outstanding liability; however, their position is that that liability is confined to the six months before this complaint was submitted to the WRC.

At the hearing, the complainant had a copy of his original contract of employment which provides that,

“Hours in excess of 39 hours will be paid at a rate of time and a quarter for the first 3 hours and time and a half thereafter.”

In his evidence, he said that, since October 2015, he has been working 7.25 extra hours every week, but he has been paid at the flat rate of pay.  When he spoke to a manager about the issue, he said that he was told not to worry and that it would be sorted out.  When it wasn’t sorted out, he spoke with another manager, and he said that he would check.  On May 27th 2022, he attended a meeting with a general manager from the respondent company.  He was accompanied by one of the people who attended this hearing.  The manager acknowledged the validity of the complainant’s concerns, and he made a very low offer to settle his claim, an offer which the complainant declined. 

In November 2022, the respondent started paying the complainant his contractual overtime rate.  The complainant’s colleague said that, just this week, the respondent made a further offer, but this was also declined.

The respondent’s position is that, in my consideration of this complaint, I am confined to addressing any liability that arises in the six months from December 24th 2021 until the complaint was submitted to the WRC on June 23rd 2022.  The director who attended the hearing gave evidence and repeated the offer that was made earlier in the week, which was declined.

Extension of the Time Limit

There was no dispute at the hearing regarding the complainant’s contractual entitlement to be paid overtime after 39 hours at time and a quarter for the first three hours and time and a half for the remainder.  The disagreement between the parties concerns the obligation of the employer to pay the complainant the wages he was due, or their obligation to pay him what he can claim under the Payment of Wages Act.  As this complaint has been submitted under the Payment of Wages Act, my investigation is confined to the parameters of that legislation.

Section 41(6) of the Workplace Relations Act 2015 sets out the timeframe within which complaints under the Payment of Wages Act may be submitted for adjudication:

“…an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

An extension of time is provided for at subsection (8) of this section:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

It is clear from this section of the Workplace Relations Act that, “for reasonable cause,” an extension of the time limit from six months to 12 months for submitting a complaint may be permitted.

The complainant is a Romanian national and English is not his first language.  I am satisfied from his evidence that he relied on the assurance he was given by managers in the company that they would investigate the discrepancy regarding his overtime pay and that the matter would be resolved.  It is my view, that, based on the assurances he received from the respondent that his complaint was being investigated, there was reasonable cause for him delaying submitting his complaint.  I have decided therefore, to extend the time limit back a further six months to June 24th 2021.

Calculation of Losses from June 24th 2021 until June 23rd 2022

The complainant said that he works 7.25 hours’ overtime every week.  The first three hours attract a rate of time and a quarter and the final 4.25 hours attract a rate of time and a half.  As the complainant’s hourly rate of pay is €11.65, I estimate that his loss of overtime pay from June 24th 2021 until he submitted this complaint on June 23rd 2022 is €1,608.  I have based this calculation on the fact that he works overtime for 48 weeks out of 52.

€2.91 for the first 3 hours = €8.74

€5.83 for the next 4.25 hours = €27.76

Total weekly overtime = €33.50

Annual overtime based on 48 weeks = €1,608

Conclusion

It is a concern to me that, for several years, the respondent was aware that the complainant was not being paid the overtime pay to which he was contractually entitled.  Even in May 2022, when the general manager met the complainant to propose a resolution, no effort was made to restore his overtime pay from that date, and there was a further delay of six months until November 2022 before the complainant was paid the wages which were properly payable to him.  For an employer to treat any employee in this way is a disgrace, but particularly so when the employee is a foreign national on low pay.

In contravention of section 5 of the Payment of Wages Act 1991, I find that, in the period in question, from June 24th 2021 until June 23rd 2022, the respondent failed to pay €1,608 to the complainant in respect of overtime pay.

Section 5 of the Payment of Wages Act sets out the manner in which I may award redress for a contravention of section 5 of the Act:

(1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding -

(a) the net amount of the wages, or tip or gratuity as the case may be (after the making of any lawful deduction therefrom) that -

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.

As the complainant was on relatively low pay, I estimate that the net value of the gross amount of €1,608 is €1,500.

At the hearing, I was informed by the complainant’s side that, on May 27th 2022, the respondent’s general manager acknowledged his entitlement to overtime pay and made an offer to compensate him for his lost wages.  While I acknowledge the loss of earnings from 2015, I am satisfied, in respect of the loss of earnings for the previous 12 months, the net amount of the wages that the employee was legally entitled to on that date was €1,500, plus his normal weekly pay.  Given that this is greater than his pay for the preceding week, I make an award of €3,000 in respect of this complaint, which is twice the amount of the deduction. 

In an effort to encourage the respondent to bring this matter to a conclusion without any further delay or detriment to the complainant, I have decided to anonymise this Decision.

Based on the conclusions set out above, I decide that this complaint is well founded.  In accordance with the redress provisions at section 6 of the Payment of Wages Act, I direct the respondent is to pay the complainant compensation of €3,000.

Illegal deduction from wages, failure to pay wages properly payable