Complainant

Respondent

Parties

Abdor Bhuiyan

Synergy Security Solutions

Representatives

Self-represented

Did not attend the hearing

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-00048397-001

31/01/2022

The complainant commenced employment as a security officer with the respondent on July 6th 2015.  His hourly rate on his last day at work in October 2021 was €11.65.  He generally worked between 48 and 60 hours a week, including weekends.  When he went on holidays in October 2021, the complainant didn’t receive his holiday pay and when he returned from holidays, he wasn’t put on the roster and he received no wages. 

In August 2021, the complainant said that he had accrued four weeks of annual leave and his wife was expecting a baby.  Using the company’s rostering and holiday portal, he applied to take holidays in September.  When he got no response, on August 11th, he sent an email to the HR department, but he got no reply.  He then phoned the HR department and he was told that his holiday request wasn’t approved.  He cancelled his holiday plans.

In September, the complainant applied again for four weeks’ holidays from Friday, October 8th until Thursday, November 4th.  At the hearing, he provided a copy of an email of September 1st 2021 from Ms Jackie Mountaine in the HR department in which she said, “These holidays are now approved and updated on the roster.” 

The complainant said that the portal provides an option for holiday pay to be paid up front or on a weekly basis as if he was at work.  He said that he asked to be paid up front.  He provided a copy of another email of September 1st to Ms Mountaine in which he asked if he needed to contact the accounts department to arrange this.  Ms Mountaine replied immediately and said, “No that’s fine, once it’s on the portal.”

The complainant was rostered for work from Friday October 1st to Tuesday, October 5th.  He was then off for two days and due to start his holidays on Friday, October 8th.  On Tuesday, October 5th, he was sick and he phoned Ms Mountaine to explain that he couldn’t come to work.  He said that she wasn’t happy about him not coming in.  A manager came on the phone and told him that if he didn’t come to work that day, he wouldn’t be paid for his holidays.

The complainant provided a copy of his contract of employment at the hearing.  This shows that wages are paid weekly by bank transfer.  The working week runs from Wednesday to Tuesday and wages are paid on Thursdays for the previous week.

The complainant was paid his wages on Thursday, October 7th, which was for work done up to Tuesday, September 28th.  Despite the threats from his employer, he commenced his four weeks’ holidays the next day.  At the hearing, he showed me a copy of his payslip for week 41, up to Tuesday, October 5th and he was paid for that week on October 14th.  He was on holidays until November 4th, but he got no up-front holiday pay, as he had requested, and he got no pay on October 21st or 28th or November 4th, the day before he was due back at work.  When he logged on to the rostering portal, his holidays were marked “can’t work.”

When the complainant checked the rostering portal for his shift commencing on November 5th, he wasn’t on the roster.  He said that he phoned the HR department and he was told that, because he went out sick before his holidays, he wasn’t going to be given any work.  When he complained about the fact that he wasn’t paid when he was on holidays, he was eventually paid one week’s pay on November 24th. He was paid again on December 2nd and December 9th..

In early January, the complainant phoned the HR manager, Eoin Cullinane, and asked to be given work, and to be paid for November and December, when he was available for work.  On Tuesday, January 4th, he wrote to Mr Cullinane and explained his concerns:

“I applied for holiday dated from the 8th October 2021 to 5th November 2021 through the Synergy portal holiday request form.  My application was approved in good time…I had worked the first week (1st, 2nd, 3rd and 4th) of October 2021.  I was not feeling well on the 5th of October and needed a day off on that day, so I called Jackie and said about my condition.  She was not happy about it and insisted me to come to work regardless my condition that I explained to her.  I was told by her that if I do not come to work that shift she will cancel my holiday.  Then she gave the phone to Robby who insisted me the same way and told me if I do not go to work on that shift, my holiday will be cancelled.  I just explained how much I was unwell.  They hung up the phone on me.

Later, when I was on my holiday, I discovered that I did not receive my holiday payment and in my roster they replaced my holiday with ‘can’t work.’

I even asked in my holiday request form to pay together my holiday payment which was not done as well.  When I was back from holiday, I rang HR department and explained to most probably Suzan.  She processed by holiday payment after my holidays over.  I expected to join at my work when I returned from holidays.

Now Jackie and Robby kept me off the roster for 3 months.  I need an explanation on what regards or grounds I am not reinstated on the roster when my holidays were supposed to be over and why my holiday was cancelled.

Does someone have the right to say and do whatever they want?  I totally hold them responsible for this arbitrary attitude.  They have ruined my holiday and ruined by life holiday after (sic).”

Two days later, on January 6th, Mr Cullinane replied:

“Eoin Cullinane here from the HR Department with Synergy Security Solutions.  Hope you are keeping well.  Following on from receiving your email and follow-up correspondence with members of the Roster, Accounts and Operations Teams, I would like to highlight and clarify a number of points.  Firstly, it is against company policy to go from a period of sick leave directly into annual leave and in your case you were absent from work on the 5th October which meant that you were not available to take paid time off following on from this missed shift.  Although your holidays had been previously granted, the absence from work on 5th October 2021 in turn meant that were not entitled to take your annual leave following on from here.

I do note however, from speaking with my colleagues in Accounts that you were paid for 4 weeks annual leave in the month of December 2021.  At this point, we are looking at placing you back on the live roster and I understand that my colleague, Russ Canto from our Operations Support Team has been in further contact with you regarding this.  Russ will reach out again on placing you back on the roster this afternoon and moving forward, if there is anything else which I can be of assistance on please do not hesitate to contact me.

Kind regards

Eoin.”

The complainant replied to this email and asked Mr Cullinane to identify the clause in his contract of employment that stated that if he didn’t attend work before his holidays that his holidays would be cancelled.  The complainant said that Mr Cullinane phoned him and told him that the company had no obligation to pay him for missed work and that if he forgot about what happened, he would be put on “a nice site.”  Following this phone call, on January 12th, Mr Cullinane wrote to the complainant:

“Hi Abdor

Thanks again for taking my call this morning.  It was great speaking with you.  Just to confirm, I am more than happy to assist you anyway possible moving forward once you have returned to work if there are any further issues surrounding Operations or Rosters.  I just need confirmation back that you will return to roster as scheduled from Saturday coming 15th January 2022 where we are rostered you at Google? (sic)

I look forward to hearing from you…”

The complainant replied on January 14th:

“Good morning Sir,

I was waiting for my shifts to be restored right after my holiday, but no one cared to put me back on roster.  I had lost my wages and working hours.  I mentioned that few times although I was denied.  Now I am in contact with Work Relations to have a fair decision about my loss.  In the meantime, I will refrain from any type of contact with Synergy over the phone.  As soon as I get my answer from Work Relations, I will inform my availability to Synergy.”

The complainant said that he sent an email to the HR department saying that he was willing to work, and that he was available for work from November 5th 2021, but he was not given any work.  He said that he felt that he was entitled to be paid, and that he wasn’t going to go back to work until the wages issue was sorted out.  Having been in touch with the information section at the WRC, he submitted this complaint on January 31st 2022.

In July 2022, the complainant received a payslip with an amount of €584.13 for the remaining holidays that he had not taken up to his last day at work on October 6th 2021.  He provided a copy of this payslip at the hearing and it shows that, on July 14th 2022, the company processed 50.76 hours of holidays at a value of €611.66 gross (€584.13 net).  The complainant said that this money was not transferred to his bank account.

The respondent did not attend the hearing.  To the extent that was possible, in the absence of a submission, I have recorded above the responses received from the HR manager, Eoin Cullinane, to the complainant, in January 2022.

The complainant was out sick on October 5th 2021, two days before he was due to go on holidays.  He was then sanctioned by not being paid any wages when he was on annual leave and by not being given any work when he returned.  During November and December, he contacted the company asking to be put on the roster, but he was not permitted to work.  In an email on January 6th, the HR manager told him that “it is against company policy” to go from sick leave to annual leave and that his absence meant that he was not entitled to take his annual leave.  The HR manager said, “we are looking at placing you back on the live roster…” It seems therefore, that, after two months with no wages, the sanction was about to be lifted.

The Entitlement to Paid Holidays

The Organisation of Working Time Act 1997 governs the entitlement of employees to annual leave.  The preamble to the Act makes clear that its objective is to provide for the health and safety of employees, and it is apparent therefore, that the legislature considers holidays to be an issue related to health and welfare, and not a benefit that an employer may arbitrarily withhold.  Section 20, at sub-section (1), addresses the time at which annual leave may be taken: 

(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

 (a) to the employer taking into account—

 (i) the need for the employee to reconcile work and any family responsibilities,

 (ii) the opportunities for rest and recreation available to the employee,

 (b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and  

(c) to the leave being granted within the leave year to which it relates or, with the consent of the employee, within the 6 months thereafter.

By October 2021, the complainant had worked five 12-hour shifts almost every week that year and, as he had accrued four weeks’ annual leave, it is apparent that he had taken no holidays.  He was entitled to take the holidays which were approved by his employer one month in advance.

Section 20(2)(a) of the Act provides that holiday pay must be paid in advance of an employee taking their leave.  By failing to pay the complainant his holiday pay up front on October 8th 2021, the respondent was in breach of section 20(2) of the Act.  Apart from breaking the law, the cruelty of that decision is difficult to comprehend, and the impact on most employees would be severe and stressful.  Understandably, the complainant said that his holidays were ruined.  This is anathema to the purpose of the legislation, which is to provide for rest and relaxation for workers with their families.

Later in November, the respondent decided to remedy the breach of the Organisation of Working Time Act, and the complainant was paid for his annual leave in three weekly instalments up to the middle of December.  It seems that the fourth week may not have been paid, because in July 2022, when he was terminated on the respondent’s rostering system, a final week’s holiday pay was processed; however, the money was not transferred to his bank account.  I note from the copy of the payslip which he produced at the hearing on November 25th 2022, that the payment was to be made by cheque.  I reviewed the complainant’s contract and, under the heading, “Payment of Wages,” it states that,

“On leaving the company, your last week’s wages will be paid by cheque.  Synergy Security Solutions will not, under any circumstances post out cheques.  They have to be collected at Head Office / Cork Office.  Please inform the office in advance of the date/time you will be picking up your cheque.”

The complainant is not a native English speaker and he may not have understood the meaning of “cheque,” on his payslip.  No one in the company contacted him to tell him to pick up his holiday pay by cheque and the effect of the company’s policy is that he has not been paid for all the holidays to which he was entitled.

The Right to Return to Work

The complainant commenced with the company in July 2015 and under the heading, “Hours of Work,” his contract provides that,

“Your normal hours of work are as your Roster issued over the Roster Cycle.”

From July 2015, until October 2021, a period of more than six years, the complainant worked every week for the respondent, apart from when he was on holidays.  As he generally worked five 12-hour shifts every week, his normal hours of work were 60 hours a week.  When he commenced, his contract provided that his rate of pay €10.01 per hour, payable weekly by credit transfer.  In 2021, his hourly rate was €11.65.     

There is no provision in the complainant’s contract to be removed from the roster for any reason, and no reference to being removed if he is absent prior to a holiday.  On the form he submitted to the WRC he said, “I was put absent on my roster for over three months without wages although I was available to work.”  His complaint therefore, is that, by failing to roster him for work, his employer has made an unlawful deduction from his wages.

Wages Properly Payable

Section 5(1) of the Payment of Wages Act 1991 provides that an employer may not make a deduction from an employee’s wages, except in certain circumstances:

(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

Sub-sections (2) to (5) of section 5 are not relevant to this complaint.  Sub-section (6) provides that, to ground a claim under the Act, wages must be properly payable:

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The decision of the Labour Court in Kostal Ireland GMBH and Mr Gabriel Delee[2] provides useful guidance regarding reduced working hours and pay.  Mr Delee was not sanctioned for any reason, but his working time was reduced to three days a week because of a downturn in his employer’s business.  His contract contained no provision for reducing his hours of work and the Court was not satisfied, based on Stefan Chmiel and others v Precast Concrete Limited[3]that the practice of reducing his working time was provided for in a collective agreement, such that it could be considered “reasonable, certain and notorious.” 

In its decision on Mr Delee’s complaint, the Court relied on a 1984 decision of the High Court in Industrial Yarns v Leo Greene[4].  Mr Greene was seeking payment of wages for a period when he was laid off.  Mr Justice Costello held that,

“If there is no contractual power (expressed or implied) in the Contract of Employment to suspend the operation of the contract for a limited period, then by ceasing to employ an employee or refusing to pay him wages, the employer is guilty of a serious breach amounting to repudiation of it.”

Taking my authority from this decision, I find that the respondent had no contractual or statutory power to cease to employ the complainant and that, by not permitting him to return to work on November 5th 2021, the respondent repudiated the most fundamental term of his contract.

Conclusions

The complainant’s contract of employment provided that he would be rostered weekly and paid weekly.  When he returned from holidays on November 5th 2021, he was available for and willing to work.  I am satisfied that, by preventing him from working, the wages properly payable to the complainant were not paid.  I find that, contrary to section 5(1) of the Payment of Wages Act, there was no statutory or contractual provision for this failure, and the complainant did not consent to the non-payment of his wages.  I have reached the conclusion therefore, that, in accordance with section 5(6)(b) of the Act, the respondent’s failure to pay the complainant the wages which were properly payable was a deduction from his wages, and, in breach of section 5(1), was an unlawful deduction.

At the hearing on May 11th 2022, the complainant provided me with adequate evidence that, in 2021, he generally worked five 12-hour shifts every week.  The payslip he received on November 25th 2021 in respect of one week’s holiday pay was for 60 hours, providing further evidence that, in the months leading up to his holidays on October 8th 2021, he worked 60 hours a week.  I find therefore, that the complainant’s contractual entitlement was to pay for 60 hours per week, amounting to €699 gross.  I note from the payslips produced in evidence that the company pays a €5.00 allowance for working on Sundays.

The complainant was available for work from Friday, November 5th 2021 and, from the correspondence he submitted in evidence, it is apparent that the HR manager proposed returning him to work on Saturday, January 15th 2022 at a Google site.  He was therefore prevented from coming to work for 10 weeks.  He decided not to return to work until the non-payment of his wages was resolved, but it was not resolved, and he submitted this complaint to the WRC on January 31st.  I find therefore, that there was an illegal deduction from the complainant’s wages for 10 weeks.  I find also that he was not paid the outstanding holiday pay of €611.66 which is stated on his final payslip of July 14th 2022.  Finally, he was not paid for each of the three public holidays on December 25th and 26th 2021 and January 1st 2022.

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 €7,000.

Employee not permitted to work, wages properly payable, illegal deduction