ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00050948

Parties:

	Complainant	Respondent
Parties	Michal Benyskiewicz	Warnervale Limited

Representatives

Self-represented

Michael Murphy

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2006	CA-00062398-001	21/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00062398-002	21/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00062398-003	21/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00062398-004	21/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00062398-005	21/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001	CA-00062398-006	21/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00062398-007	21/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00062398-008	21/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00062398-009	21/03/2024

Date of Adjudication Hearing: 29/07/2024

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, and Section 45A of the Industrial Relations Act 1946, and Section 16 of the Protection of Employees (Part-Time Work) Act 2001 and Section 14 of the Protection of Employees (Fixed-Term Work) Act 2003following 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.

Background:

The Complainant submitted 9 complaints concerning annual leave, public holidays, daily rest periods, breaks, weekly rest periods, part-time work and fixed-term work. The complaints were received on 21/03/2024.

Section 41 (6) of the Workplace Relations Act 2015 provides:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The time period for consideration is from 22/09/2023.

Summary of Complainant’s Case:

The Complainant gave evidence on affirmation. He stated that he was employed as a Security Guard at a large meat plant. He worked night shifts and he did not receive proper breaks, he was not paid public holiday entitlements until after many months of seeking them, he often worked 7 days 7pm to 7am, and he only received work for 1 day per week, while everyone else was given full time work.

Summary of Respondent’s Case:

The Respondent Mr M gave sworn evidence. He also provided a written summary of the Respondent’s response to the complaints.

The Respondent provided detailed records and an account summarised as follows:

Holiday entitlements and details of holidays taken which shows that the Complainant was overpaid 3.57 days of holidays.

Rotas for weeks that public holidays occurred and associated payslips showing payment for public holidays.

Sample of rotas where he signed stating that he received breaks and confirming the hours worked. It also shows that he got daily rest periods of 12 hours and he only worked a maximum of 4 shifts in any week and he received his weekly rest periods.

His original contract of employment and the updated contract which covers the part-time basis were provided. He signed these and was given a copy of them.

WhatsApp messages showing his resignation from the Company on 17/06/2023, after which he continued to be employed on a part-time basis.

On 17/02/2024 the Complainant walked off the site leaving the gates open and the site without any security.

It was confirmed by Mr M that the Complainant had the same terms and conditions as all other employees who are issued with standard contracts of employment.

Mr M confirmed that an inspection by WRC was carried out on 30/04/2024and no issues were found that required attention in relation to the employment of the Complainant. The Company also had an audit from the Private Security Authority on 28/09/2023 and that was concluded in a satisfactory manner.

Findings and Conclusions:

The following are my findings under each separate complaint submitted by the Complainant:

CA-00062398-001 Complaint under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2006.

The Regulations apply to crew members of flights. They are not applicable to the Complainant. I find the complaint to be not well founded.

CA-00062398-002 Section 45A under the Industrial Relations Act 1946

The complaint is that the Respondent failed to give the Complainant his entitlements to Public Holidays as provided for in the Employment Regulation Order (ERO) for the Security Industry. I note the records provided by the Respondent, including the relevant payslips. I find the complaint to be not well founded.

CA-00062398-003 Section 45A under the Industrial Relations Act 1946

The complaint is that the Respondent failed to provide the Complainant with daily rest periods as provided for in the ERO for the Security Industry which requires each employer to ensure that each worker shall have rest periods and breaks provided for in Sections 11, 12 and 13 of the Organisation of Working Time Act 1997. I note the records provided by the Respondent. I find the complaint to be not well founded.

CA-00062398-004 Section 45A under the Industrial Relations Act 1946

The complaint is that the Respondent failed to provide the Complainant with breaks as provided for in the ERO for the Security Industry. I note the Respondent’s evidence and the notice given to staff to ensure breaks are taken. I have not been presented with clear evidence from the Complainant that he was not provided with the opportunity to take breaks during his work shifts. I find the complaint to be not well founded.

CA-00062398-005 Section 45A under the Industrial Relations Act 1946

The complaint is that the Respondent failed to provide the Complainant with weekly rest periods as provided for in the ERO for the Security Industry which requires each employer to ensure that each worker shall have rest periods and breaks provided for in Sections 11, 12 and 13 of the Organisation of Working Time Act 1997. From the records provided for by the Respondent I find no evidence that the Complainant was not granted a rest period of at least 24 consecutive hours in each period of 7 days as provided for in Section 13 of the Organisation of Working Time Act 1997. I find the complaint to be not well founded.

CA-00062398-006 Protection of Employees (Part-Time Work) Act, 2001

Section 9 of the Act provides that a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee. I note the contracts of employment submitted by the Respondent which show the same terms and conditions of employment for the Complainant in relation to his first contract which he signed on 17/02/2022 and the second contract which he signed on 21/10/2023 with the exception that the second contract provided that he was employed on a part-time basis. The Complainant’s complaint is that he was given less work hours than a full-time employee. However, the nature of part-time work is that the worker works less hours than a full-time employee. I have been presented with no evidence that the Complainant was treated in a less favourable manner in terms of the conditions of employment than a full-time employee. I find the complaint to be not well founded.

CA-00062398-007 Protection of Employees (Fixed-Term Work) Act, 2003

The definition of a fixed-term worker contained in the Act is:

“fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event…”

I note the contract of employment provided to and signed by the Complainant on 21/10/2023 states

The position is a permanent position..”

The Complainant was not a fixed-term employee in accordance with the definition in the Act. I find the complaint to be not well founded.

CA-00062398-008 Protection of Employees (Fixed-Term Work) Act, 2003

The definition of a fixed-term worker contained in the Act is:

I note the contract of employment provided to and signed by the Complainant on 21/10/2023 states

The position is a permanent position..”

The Complainant was not a fixed-term employee in accordance with the definition in the Act. I find the complaint to be not well founded.

CA-00062398-009 Protection of Employees (Fixed-Term Work) Act, 2003

The definition of a fixed-term worker contained in the Act is:

I note the contract of employment provided to and signed by the Complainant on 21/10/2023 states

The position is a permanent position..”

The Complainant was not a fixed-term employee in accordance with the definition in the Act. I find the complaint to be not well founded.

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.

CA-00062398-001 Complaint under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2006.