ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00037739

Parties:

	Complainant	Respondent
Parties	Juri Zelkovski	K-Tech Security Ltd

Representatives

Self-Represented

A. O’Mara - HR Consultant

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00046422-001	07/09/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00046422-002	07/09/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00046422-003	07/09/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00046422-004	07/09/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00046422-005	07/09/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00046422-006	07/09/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00046422-007	07/09/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00046422-008	07/09/2021
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00046422-009	07/09/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00046422-010	07/09/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998	CA-00046422-011	07/09/2021

Date of Adjudication Hearing: 03/02/2023

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015; Section 27 of the Organisation of Working Time Act, 1997 , Section 6 of the Payment of Wages Act, 1991 , Section 45A of the Industrial Relations Act, 1946; Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 and Section 86 of the Employment Equality Act, 1998 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.

The required Affirmation / Oath was administered to all witnesses present. The legal perils of committing Perjury were explained to all parties.

There were no issues raised regarding confidentiality in the publication of the decision.

Background:

The Complainant was employed as a Security Officer from the 6th December 2014 until the 17th of March 2021.

He alleged that he was not properly renumerated for Work Breaks, Sunday Work, Holidays, Paid less that the Statutory ERO Rates, Worked Excessive hours and was Discriminated Against contrary to the Employment Equality Act,1998.

The stated rate of pay was variable, and the weekly hours fluctuated considerably but generally were well in excess of 48 hours.

Opening Issue:

Reckonable Period.

The Complainant sought restitution for the entire period of his employment – 6th December 2014 to 17th March 2021.

The statutory basis (Workplace Relations Act ,2015) requires complaints to be made within 6 months of the date of the Contravention alleged. The Complaint was lodged on the 7th September 2021. Accordingly in this case the reference period has to run from the 7th March 2021 (6 months prior) to the date of resignation, the 17th March 2021. Allowing a further 6 month extension (which was not requested) would take the reference period back to the 7th September 2020.

Extension back to 6th December 2014, as requested, is not legally possible.

Accordingly, the Reckonable Period has to be the 7th of March to the 17th March 2021.

1: Summary of Complainant’s Case:

In view of the large number of Complaints a Tabular format is used. The Complainant made a lengthy Oral testimony supported by extensive documentary evidence regarding alleged pay rates going back to 2014.

Act	Complaint/Dispute Reference No.	Summary Complainant case
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00046422-001	Proper breaks were not granted
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00046422-002	Proper Sunday rates were not paid
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00046422-003	There was a shortfall in the proper wage rates of the Complainant.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00046422-004	The Complainant was not given proper Statutory Holidays
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00046422-005	The Respondent was in breach of the Statutory ERO regulations as regards Holidays
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00046422-006	The terms of the ERO were breached as regards Breaks.
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00046422-007	The overall terms of the ERO were breached by the Respondent Employer
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00046422-008	The Complainant received false information from his Employer contrary to the terms of the Employment (Information) Act, 1994.
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00046422-009	The Employer was in breach of this regulation.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00046422-010	The Complainant was required to work excess hours
Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998	CA-00046422-011	The Contract of Employment contained a Discriminatory Provision.

2: Summary of Respondent’s Case:

For convenience the Tabular Format used above is continued. The Respondent made an Oral Testimony led by Mr A O‘Mara and supported by extensive documentary materials.

Act	Complaint/Dispute Reference No.	Summary or Respondent Rebuttal (For convenience Complainant is in italics at top).
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00046422-001	Proper breaks were not granted Respondent refuted this and advanced Time Sheets showing the Complainant having signed for his breaks in the period 21/12/2020 to the 15/03/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00046422-002	Proper Sunday rates were not paid. A Comprehensive Sunday pay arrangement was agreed in 2020 and implemented on the 1st of February 2020. The Complainant was a beneficiary and received the proper Sunday rate during the Reference period.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00046422-003	There was a shortfall in the proper wage rates of the Complainant. Pay Slips were submitted by the Respondent to show that the Complainant had always received his proper rates of pay.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00046422-004	The Complainant was not given proper Statutory Holidays Respondent submitted Wage records to demonstrate that proper holidays were granted.
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00046422-005	The Respondent was in breach of the Statutory ERO regulations as regards Holidays Respondent submitted Wage records to demonstrate that proper holidays were granted as per the ERO.
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00046422-006	The terms of the ERO were breached as regards Breaks. Respondent refuted this and advanced Time Sheets showing the Complainant having signed for his proper breaks in the period 21/12/2020 to the 15/03/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00046422-007	The overall terms of the ERO were breached by the Respondent Employer This was refuted by the Employer /Respondent and supported by Wage Records.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00046422-008	The Complainant received false information from his Employer contrary to the terms of the Employment (Information) Act, 1994. This was absolutely denied, supported by documents submitted, by the Respondent.
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00046422-009	The Employer was in breach of this regulation. This complaint has no basis as there is no connection to any mobile Road/Transport activity
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00046422-010	The Complainant was required to work excess hours. Respondent submitted Wage Records and referred to periodic WRC Inspections that showed no breach of the 48-hour regulations as regards the Complainant.
Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998	CA-00046422-011	The Contract of Employment contained a Discriminatory Provision. Respondent pointed out that the Complainant had supplied absolutely no details to substantiate this complaint. In Legal Terms it lacked any prima facie basis.

3: Findings and Conclusions:

3:1 Opening observations by Adjudicator.

This case was characterised by an enormous number of handwritten submissions, wage sheets etc from the Complainant. The Complainant was insisting on a full examination of all matters back to 2014. A closely related claim Adj 33684 with the same Respondent had already been to Adjudication.

The Reference Period issue was similar to this case. The period in question has to be from 7th March 2021 to the 17th March 2021 - the Resignation date.

The Respondent sworn evidence supported by extensive documentation did not indicate any breaches of the cited Acts or regulations in this period. The WRC Inspectorate had examined the Company in late 2019 and had raised no major non compliances.

Accordingly, it is very difficult to see supporting cogent evidence to support any of the Complainant’s complaints.

3:2 Adjudication conclusions.

Again, the Tabular format will be used in view of the large number of complaints.

Act	Complaint/Dispute Reference No.	Adjudication Conclusion. (For convenience Complainant is in italics at top).
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00046422-001	Proper breaks were not granted Sworn Respondent evidence and records produced demonstrated that Breaks had been taken. Balance of Probability with the Respondent. Complaint Not Well Founded.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00046422-002	Proper Sunday rates were not paid. A Comprehensive Sunday pay arrangement was agreed in 2020 and implemented on the 1st February 2020. The Complaint is a beneficiary and received the proper Sunday rate during the reference period. This issue was touched upon in Adj 33684. The Adjudicator in Adj 33684 felt that the rate was “scarcely appropriate”. However, as the Rate was agreed and accepted by the Complainant and the reference period was very short an award seems unwarranted.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00046422-003	There was a shortfall in the proper wage rates of the Complainant. Pay Slips were submitted by the Respondent to show that the Complainant had always received his proper rates of pay. This was evidence under sworn oath. Balance of probability has to be with the Respondent. Claim Not Well Founded.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00046422-004	The Complainant was not given proper Statutory Holidays Respondent submitted, under sworn oath, Wage records to demonstrate that proper holidays were granted. Balance of probability has to be with the Respondent. Claim Not Well Founded.
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00046422-005	The Respondent was in breach of the Statutory ERO regulations as regards Holidays Respondent submitted, under Oath, Wage records to demonstrate that proper holidays were granted as per the ERO. Balance of probability has to be with the Respondent. Claim Not Well Founded
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00046422-006	The terms of the ERO were breached as regards Breaks. Respondent refuted this and advanced Time Sheets, under Oath, showing the Complainant having signed for his proper breaks in the period 21/12/2020 to the 15/03/2021. Balance of probability has to be with the Respondent. Claim Not Well Founded
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00046422-007	The overall terms of the ERO were breached by the Respondent Employer This was refuted by the Employer /Respondent and supported by sworn Wage Records. Balance of probability has to be with the Respondent. Claim Not Well Founded
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00046422-008	The Complainant received false information from his Employer contrary to the terms of the Employment (Information) Act, 1994. This was absolutely denied, supported by sworn documents submitted, by the Respondent.
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00046422-009	The Employer was in breach of this regulation. This complaint has no basis as there is no connection to any mobile Road/Transport activity. Complaint has no proper standing and has to be deemed Not Well Founded.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00046422-010	The Complainant was required to work excess hours. Respondent submitted sworn wage Records and referred to periodic WRC Inspections that showed no breach of the 48-hour regulations as regards the Complainant. Balance of probability has to be with the Respondent. Claim Not Well Founded.
Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998	CA-00046422-011	The Contract of Employment contained a Discriminatory Provision. Respondent pointed out that the Complainant had supplied absolutely no details to substantiate this complaint. In Legal Terms it lacked any prima facie basis Complaint has to be dismissed as lacking any prima facie basis.

4: Decision:

Section 41 of the Workplace Relations Act 2015; Section 27 of the Organisation of Working Time Act, 1997 , Section 6 of the Payment of Wages Act, 1991 , Section 45A of the Industrial Relations Act, 1946; Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 and Section 86 of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions of the cited Acts.

Act	Complaint/Dispute Reference No.	Adjudication Decision (For convenience Complainant is in italics at top).
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00046422-001	Proper breaks were not granted Complaint Not Well Founded.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00046422-002	Proper Sunday rates were not paid. Complaint Not Well Founded.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00046422-003	There was a shortfall in the proper wage rates of the Complainant. Claim Not Well Founded.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00046422-004	The Complainant was not given proper Statutory Holidays Claim Not Well Founded.
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00046422-005	The Respondent was in breach of the Statutory ERO regulations as regards Holidays Claim Not Well Founded
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00046422-006	The terms of the ERO were breached as regards Breaks. Claim Not Well Founded
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00046422-007	The overall terms of the ERO were breached by the Respondent Employer Claim Not Well Founded
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00046422-008	The Complainant received false information from his Employer contrary to the terms of the Employment (Information) Act, 1994. Complaint Not Well Founded.
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00046422-009	The Employer was in breach of this regulation. This complaint has no basis as there is no connection to any mobile Road/Transport activity. Complaint has no proper standing and has to be deemed Not Well Founded.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00046422-010	The Complainant was required to work excess hours. Claim Not Well Founded.
Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998	CA-00046422-011	The Contract of Employment contained a Discriminatory Provision. Complaint has to be dismissed as lacking any prima facie evidential basis.

Dated: 25/10/2023

Workplace Relations Commission Adjudication Officer: Michael McEntee

Key Words:

Working time Act, Sunday Pay, Breaks, ERO Rates, Discriminatory Clauses, Terms of Information.