Complainant

Respondent

Parties

Cosmin Bogdan  Scarlat

Securitas Security Services (Ireland) Limited

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

Ms. Aleksandra Tiilikainen, IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00052434-002

27/08/2022

The Complainant commenced employment with the Respondent on 22nd February 2022. At all times the Complainant was engaged as a “Static Security Officer”. The Complainant resigned his positin on 28th July 2022.

On 27th August 2022, the Complainant referred the present complaint to the Commission. Herein, he alleged that the Respondent did not pay overtime rates in accordance with the relevant Employment Regulation Order. In denying this complaint, the Respondent submitted that all contractual and regulatory payment were issued to the Complainant during the course of his employment.

A hearing in relation to this matter was convened for, and finalised on, 27th March 2023. The Respondent issued a submission in advance of the hearing which was copied to the Complainant for his review. The Complainant gave evidence in support of his complaint, whilst the Respondent called a Branch Manager to give evidence in defense. All evidence was subject to cross examination by the opposing side.

No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

The Complainant submitted that during his five months of employment he routinely worked in excess of 48 hours per week. In this regard, he submitted that in the 22 weeks he worked for the Respondent he worked for 48 hours for four of these weeks, and worked well in excess of 60 hours per week for the remaining 18 weeks.

At the end of his employment, the Complainant queried the apparent non-payment of overtime throughout his tenure. He submitted that the Respondent did not provide a satisfactory response to his query in this regard.

By submission, the Complainant referred to Section 1(3)(a) of the relevant Employment Regulation Order. This section provides that,

“…all hours worked in excess of 48 hours per week in the roster cycle will be paid at a rate of time and a half”.

The position of the Complainant was that the Respondent was in breach of this provision and, as a consequence of the same, he submitted that his application should succeed.

By in answering the complaint, the Respondent denied that they were in breach of the relevant ERO.

In this regard, the Respondent submitted that the Complainant’s contract of employment provided for a rate of pay that was well in excess of that set out in the ERO. In this regard, the Respondent referred to Section 21 of the same. This section provides that,

“Excluding rates of pay (otherwise known as core pay), this Employment Regulation Order does not affect in any way already existing agreements (whose terms are equal or better), be they local, national, official, or in a company”.

In this regard, the Respondent provided a detailed summary of the payments received by the Complainant in the course of his employment. This summary demonstrated the amount paid to the Complainant under the terms of his employment contrasted with the hypothetical amount that would be paid to the Complainant under the terms of the Employment Regulation Order. In this regard, they submitted that the contractual amount paid to the Complainant was well in excess of the hypothetical payment under the ERO. The Respondent submitted that this exercise is undertaken for all employees. In the event that the ERO payment is greater than the contractual payment, then this amount is paid to the employee.

Having regard to the foregoing, the Respondent submitted that the complaint should be deemed to be not well-founded.

Regarding the present complaint, the Complainant has alleged that the Respondent failed to pay the overtime rate stipulated in the Employment Regulation Order. Section 1(3)(a) of the Employment Regulation Order (Security Industry Joint Labour Committee) 2017 provides that,

“…all hours worked in excess of 48 hours per week in the roster cycle will be paid at a rate of time and a half”.

Notwithstanding the foregoing, the Respondent submitted that the Complainant contractual rate of pay was in excess of that provided for in the ERO. In this regard they sought to rely on Section 21 of the same. This section provides that,

“Excluding rates of pay (otherwise known as core pay), this Employment Regulation Order does not affect in any way already existing agreements (whose terms are equal or better), be they local, national, official, or in a company”.

The first point to note in relation to the above provision is that rates of pay is excluded from the same. However, in this regard, it should be noted that Section 1 of the ERO states that,

“…where rates of pay (including composite rates) are higher than the rates of pay provided for in this section, it shall be necessary for the employer to keep …such records as are necessary to show that the above Rates of Remuneration, as defined in this section, are being complied with”.

Having regard to the foregoing, it is apparent that a composite rate will be compliant with the entirety of Section, including the overtime rates provision, so long as records are maintained and produced in relation to the same.

In answer to a further query posed by the Complainant, the Respondent demonstrated that he received double time for all hours worked on public holidays.

In the present case, it is apparent the Respondent has retained such records. Following a review of the same, the Complainant did not dispute the assertion that his contractual rate of pay was in excess of that provided for by the ERO. Having regard to the foregoing, I find that the complaint is not well-founded.

Section 45A of the Industrial Relations Act 1946 (as amended) provides that,

“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 1977.”

In accordance with subsection (a) above, I find that the complaint is not well-founded.

ERO, composite rate, overtime