ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00046191
Parties:
| Complainant | Respondent |
Parties | Abdus Ansary | Synergy Security Solutions Limited |
Representatives | Marius Marosan | Frank Walsh,Employee Relations - Synergy. |
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-00057072-001 | 12/06/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00057072-002 | 12/06/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00057072-003 | 12/06/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00057072-004 | 12/06/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00057072-005 | 12/06/2023 |
Date of Adjudication Hearing: 25/10/23 and31/01/2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or complaints presented. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence and submissions tendered during the course of the hearing.
In particular, the Complainant herein has referred four complaints concerning alleged contraventions of The Organisation of Working Time Act 1997. There is an additional complaint of a contravention of the Payment of Wages Act, 1991.
In terms of redress, and pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act 2015 shall do one or more of the following:
- (i) Declare the complaint was or was not well founded;
- (ii) Require the Employer to comply with the relevant provision;
- (iii) Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
The Adjudication Officer must be aware of applicable time limits and in this regard, the Workplace Relations Act specifies at Section 41 (6) that (subject to s.s.8) an Adjudication Officer shall not entertain a complaint referred to said Adjudication Officer after the expiration of the period of six months beginning on the date of the contravention to which the Complaint relates.
Section 41 (8) specifies that the Adjudication Officer may entertain a Complaint or dispute to which section 41 applies after the expiration of the six month period referred to in ss. (6) and (7) – though not later than a further six months after the initial expiration as the case may be - if the Adjudication Officer is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.
The particular contraventions of the Organisation of Working Time Act 1997 under discussion herein are :
Weekly working hours - Section 15.—(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed…4 months or….. 6 months (as in the case of the Security industry).
Entitlement in respect of public holidays – Section 21.- (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—
(a) a paid day off on that day,
- (b) a paid day off within a month of that day,
- (c) an additional day of annual leave,
Sunday work - Section14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being
required so to work by the following means, namely—
- (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
- (b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or
- (c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or
- (d) by a combination of two or more of the means referred to in the preceding paragraphs.
Nightly working hours - Section 16 - …….Without prejudice to section 15, an employer shall not permit a night worker, in each period of 24 hours, to work—
- (a) in a case where the work done by the worker in that period includes night work and the worker is a special category night worker, more than 8 hours,
- (b) in any other case, more than an average of 8 hours, that is to say an average of 8 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—
- (i) 2 months, or
- (ii) such greater length of time as is specified in a collective agreement that for the time being has effect in relation to that night worker and which stands approved of by the Labour Court under section 24.
The Complainant has brought a further complaint of a contravention of the Payment of Wages Act, 1991 which amounts to a complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer does pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Section 5 of the Payment of Wages Act, 1991 sets out the instances wherein deductions can and cannot be made.
Section 5 (1) states that an employer shall not make a deduction from an employee unless:
The deduction is required by Statute or Instrument;
The Deduction is required by the Contract of employment;
The employee has given his prior consent in writing;
Section 5 (2) does allow for some limited instances for deduction in respect of an Act or Omission or for the provision of something to the Employee. This might be where the deduction is specifically provided for in the Contract of Employment (and so on notice), or when the deduction is considered to be fair and reasonable in all the circumstances and the Employee is on notice of the existence and effect of the said terms which the Employer claims allows for the deduction.
It is noted that any deduction for an Act or Omission aforesaid must be implemented (in full or in part) not greater than six months after the Act or Omission became known.
It is noted that per Section 4 an Employer shall give or cause to be given to an employee a statement in writing which will specify the gross amount of wages payable to the employee and the nature and the amount of any and all deductions taken therefrom.
Background:
This hearing was conducted over two days and in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing. The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 12th of June 2023. In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to direct that all parties giving oral evidence before me, to swear an oath or make an affirmation as may be appropriate. In the interests of progressing this matter, I confirm that I have in the circumstances administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence. |
Summary of Complainant’s Case:
The Complainant was fully represented. The Complainant did not attend the first hearing date which was deemed unsatisfactory and so he made himself available for the second day of hearing. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant’s representative had provided me with a comprehensive submission on the first day of hearing on October 25th, 2023. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form. I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to any of the materials relied upon by the Complainant in making his case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative. The Complainant alleges that his Employer systematically contravened obligations under the Organisation of Working Time Act. The Complainant also alleges unlawful deductions being made. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent entity was represented by the Employee Relations Manager/Director. The Respondent provided me with two written submissions dated 13th of October 2023 and 23rd of November 2023. I have additionally heard from a number of witnesses for the Respondent. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation/Oath. The Respondent witnesses were challenged as appropriate by the Complainant representative. The Respondent rejects that there have breaches of Statutory obligations and does not accept any contravention of Employment Rights as protected by statute. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully considered the evidence adduced over the course of this two-day hearing. The Complainant issued his workplace complaint form on the 12th of June 2023. Given that a complaint should be issued within six months of a contravention (unless reasonable cause is demonstrated) I am, on the face of it, limited to looking back at a period of six months immediately prior to the 12th of June 2023 for evidence of the Statutory breaches complained of. I am therefore looking at the period commencing the 13th of December 2022 to the 12th of June 2023. I note that the Complainant left this employment as of the 1st of March 2023 which further limits the timeframe from the 13th of December 2022 to the 28th of February 2023. The Complainant came to work with the Respondent company in and around the 20th of December 2019. The Respondent/Employer is a leading security service provider operating in Ireland. In the circumstances, it is assumed that the Employer operates in line with the operable Contract Security Employment Regulation Order 2017 and/or 2023. The Complainant worked in various sites around the city of Dublin. The Rosters were issued weekly and usually nine days in advance of the first day of roster. As per the Organisation of Working Time Act the normal working week should not exceed 48 hours and I understand the Complainant primarily worked night shift of 12 hours meaning his roster should normally have included four-night shifts in the working week. The Complainant suggested that one client (Ac) needed a 14-hour shift to be done and the complainant was regularly assigned to that site. In practise, the Complainant very often worked more than the 48 hours average that is provided for under the OWT Act. As I understand it, the Complainant himself actively sought extra shifts right from the start of his employment. He stated he was happy with the hours. This resulted in him working anywhere from 60 hours (one extra shift) to 84 hours (three extra shifts) in the working week. I acknowledge that the Security Industry is, by its nature, an industry wherein overtime is a common feature. Indeed, the relevant Employment Regulation Orders specify that overtime shall be paid at a rate of time and a half. The Respondent witness JM conceded that towards the end of this employment they had allowed the complainant’s average hours to significantly increase in preparation for a TUPE and a consequential freeze on new hires. However, looking at the hours worked by the Complainant from 2019 to 2022 it is hard to see any six-month period wherein the average working week was close to 48 hours, and it seems to me that although this situation did suit both parties, it is nonetheless a breach of the legislation. The provisions of the OWT Act and of the Directive on which it is based, are health and safety imperatives (per Edward James Feeney -v- Milagros Baquiran [2004] 15 ELR 304). Working excessive hours is considered unsafe. The complaint under Section 15 is well-founded. In assessing compensation, I am mindful of the fact that both parties readily engaged in the arrangement. I make no observation regarding the oral evidence tendered that the complainant once or twice worked two twelve hour shifts back-to-back. There was no corroborative evidence (and no dates provided) and the Respondent rejected the possibility that it would ever ask an employee to work 24 hours straight. Under the Payment of Wages Act, the Complainant also gave evidence that, when he started, he was not paid the extra half hourly rate for the hours worked over and above 48 hours in the week. This issue was resolved towards the end of 2022 from which time he was paid the correct overtime rates. The Complainant says he had to raise the issue of overtime rates on many occasions with his manager to ensure he was getting paid the correct overtime rates. I understand that any outstanding overtime payments due to the Complainant were paid before the first date that the parties convened for the hearing of this matter. I am also satisfied (for the purpose of the Payment of Wages Act) that the complainant was getting paid Night Shift Allowance for any Night Shift he was working. This is an obligation set out in the ERO and coming under the heading “Unsocial hours”. I have been presented with an uncontested and fully signed amendment to the Employment Contract which affirms the contention that the complainant was getting paid a night shift allowance of €16.80 from the 16th of December 2022 (This particular rate of Allowance was particular to the Ac site at which the Complainant primarily worked). I note that this pretty much covers the six-month period prior to the issuing of the complaint form. On balance, therefore the claims under night shift and overtime are not well founded based on the evidence adduced. In the course of evidence, it was further revealed that the Complainant was getting compensation (or a premium payment) for working on a Sunday. The Complainant suggested that the amount being paid was not reasonable. I am satisfied that the Complainant was getting a Sunday allowance of €3.44 extra per hour worked on a Sunday and that this figure was applicable from the 16th of December 2022 and represented an increase on the previous premium payable. I am satisfied that the figure is discernible and unequivocally specified. No evidence was adduced to suggest the quantum was unreasonable and no benchmark was offered in this regard. This complaint is not well founded. In the last complaint I am considering, the Complainant contends that he works excessive night hours. That is that the Employer has obliged the Complainant to work more than 8 hours in each period of 24 hours in a given reference period. I note that “nighttime” means the period between midnight and 7 a.m. on the following day. In his evidence the complainant has confirmed that he generally worked a 7pm to 7am shift. This tends to suggest that the complainant therefore only worked 7 nighttime hours in any given 24-hour period. The Respondent rejects any suggestion that it has fallen foul of its Statutory obligation herein. I am on balance of the mind that the Complaint herein is not well founded. I have taken the time to carefully review all the evidence both written and oral. I have noted the respective position of the parties in relation to each of the complaints. I am not required to provide a line for line analysis of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00057072-001 – excessive Hours – This complaint is well founded, and I award compensation in the amount of €500.00 as seems just and equitable having regard to all the circumstances. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00057072-002 - Overtime and Pay - The complaints herein are not well founded and fail. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00057072-003 - Public Holidays – The complaint herein was withdrawn in the course of the hearing. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00057072-004 – Sunday working - The complaint herein is not well founded and fails. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00057072-005 Excessive night hours - The complaint herein is not well founded and fails.
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Dated: 14-02-2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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