Complainant

Respondent

Parties

Mikolaj  Bosowski

OCS One Complete Solution Ltd

Representatives

 IBEC

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-00058383-001

18/08/2023

The complainant is employed as a retail security guard with the respondent.  He states that on 27 March 2023, the respondent informed all staff that there will be an increase in the hourly rate of pay  commencing 3 April 2023 to €13.50 per hour. The complainant states that two weeks later, his manager contacted him and stated that in order to receive his pay rise he would have to reject his Sunday allowance and if he decides to keep it, his pay will remain at €12.05 per hour although he states this was not mentioned previously. The complainant states that his manager put pressure on him and informed him that he had no choice but to sign under one or the other.

The complainant states that within the company, there is security personnel who work in the retail store and security guards that look after the car park. He states that security staff in the store are entitled to an extra .50 cent per hour on top of their pay rise which he finds very unfair as both do the same type of work. The complainant states that security personnel in the store received a €400 Christmas bonus in 2022 which he states is very unfair.

The respondent states that it is a facilities management company. It states that the complainant was employed as a retail security guard and his employment commenced on 29 June 2016. The respondent states that the complainant is assigned to a carpark on a named Retail site at a rate of €12.90 per hour which was increased on 9 May 2023 from €12.05 per hour and backdated to 3 April 2023.

Preliminary Issue

The respondent argues that the claim by the complainant regarding non-payment of Christmas bonus for 2022 falls outside the prescribed six months period and is therefore statute barred.

In relation to the complainant’s claim regarding an alleged breach of the Payment of Wages Act; the respondent states that on 27 March 2023 the company announced to its security personnel working on the Named Retail security contract that they would be receiving an uplift in their hourly rate to €13.50 effective from Monday 3 April 2023. It explained that delays were caused by the security Employment Regulation Order (ERO) not being signed into law and that despite that the respondent worked with the Named Retail Store to introduce an increased rate of pay for the respondent’s retail security staff on this contract. The respondent asserts that it further advised that its managers would be in contact with staff to update them on the necessary paperwork required to implement these changes.

The respondent states that on 13 April 2023, Mr AK met with the complainant face to face to discuss the increase in rate of pay and to complete the change and additions form. It states that key to this was an explanation that the rate of €13.50 was a composite rate per hour, inclusive of Sunday allowances and that night and site allowances are payable separately. The respondent states that the complainant did not accept this explanation and refused to accept a choice between the rate of €12.90 per hour plus allowance or the composite rate of €13.50 per hour. The respondent states that he expected the rate of €13.50 plus additional payment when working Sundays.

The respondent states that on 20 April 2023, the complainant sent an email to payroll and HR enquiring why his rate of pay had not been increased from €12.05 to €13.50 in the payment he had received. The respondent asserts that HR advised that they would look into the matter and get back to him. On 4 May, the complainant sent another email to HR advising that he had received a second payment on which the increased rate of pay had not been effected.

The respondent states that on 5 May 2023, Mr AK sent an email to the complainant, clarifying the new rate of pay, in line with the explanation he provided in their meeting of 13 April 2023. He signed the change and additions form for the new rate which the complainant refused to sign. The respondent asserts that Mr AK advised the complainant that if he did not wish to accept the composite rate, he would be moved to the basic rate of €12.90 plus allowance and he was also advised of the grievance policy in order to address and further concerns he may have.

The respondent states that on 8 May 2023, the complainant replied back stating that the announcement email of 27 March did not stipulate the €13.50 was a composite rate and again requested to be paid €13.50 per hour and to receive the Sunday rates. The respondent asserts that on 9 May 2023, the complainant’s rate of pay was increased from €12.05 to €12.90 and backdated to 3 April 2023 and he has continued to be paid on the rate of €12.90 and is paid additionally Sunday allowances when applicable.

The respondent states that the complainant never took the matter up internally after that nor did he lodge a grievance. The respondent states that it has implemented the salary increase for all its security officers as outlined above. The respondent states that in relation to the .50 cent site allowance and Christmas bonus, these payments are applicable to the retail contracts and paid to the security officers working in those sites. It states that the complainant was never entitled to any such payments.          

Preliminary Issue

In relation to the complainant’s claim with regard to a Christmas bonus in 2022, I find that this complaint is out of time as it was not presented within 6 months timeframe pursuant to the legislation and in those circumstances this claim is statute barred.

Section 1 of the Payment of Wages Act 1991 defines wages as follows; “wages” in relation to an employee means any sums payable to the employee by the employer in connection with his employment…

In relation to the complainant’s claim that the respondent did not pay him his correct wages; having carefully examined the matter I note that the complainant’s manager advised the complainant that he could either accept the composite rate of 13.50 per hour or he would be moved to the basic rate of €12.90 plus Sunday allowance.  The complainant was of the view that he should receive the €13.50 rate plus Sunday allowance. I note that the respondent informed the complainant about the grievance policy if he had further concerns. I note that the complainant did not follow up with a grievance regarding the matter.

The complainant has also raised issues in relation to the non payment of a .50 cent site allowance and Christmas bonus that he has not received.  I note the evidence of the witness for the respondent who stated that these payments are applicable to the retail contracts, i.e. security staff working on site within the retail stores and that the complainant whose role it is to tend to the car park attached to the store was never entitled to any such payments.  

In all of the circumstances of the within complaint, I find that the complainant has not established a breach of the Payments of Wages Act and accordingly I find that this complaint is not well-founded.

I find that the within complaint is not well-founded.

Payments of Wages Act