Complainant

Respondent

Parties

Drazen Ramljak

Securitas Security Services Ireland Limited

Representatives

Cillian McGovern BL

Danny Ryan BL

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-00060092-001

17/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00060092-003

17/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00060092-004

17/11/2023

The complainant is a security guard and he commenced working on December 19th 2019 with Provincial Security Services.  He was assigned to a job at the construction site of a data centre in Clonee in County Meath.  On March 29th 2021, under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (TUPE), he transferred to the respondent and he continued in the same job.  Sometime after his transfer, he was assigned to a job at a data centre that was already up and running.  In January 2022, arising from a disciplinary matter, the complainant was issued with a written warning and moved to a different site in Clonee.  The respondent’s contract with that client finished up in March 2022 and the complainant then moved to a client’s site in Leopardstown.

The complainant submitted these complaints to the WRC on November 17th 2023.  At the hearing, he said that he resigned on October 28th 2024 when he moved to Wexford.

Terms and conditions for the respondent’s employees are governed by the Employment Regulation Order (ERO) for the Security Industry, the latest of which was published on June 26th 2024.  When he was employed by the respondent, the relevant ERO was Statutory Instrument 231 of 2017.  This provides that the basic hourly rate of pay with effect from June 1st 2019 was €11.65.  The contract issued to the complainant on November 29th 2019 states that his hourly rate was €13.50.  The complainant said that his actual hourly rate when he worked at the first data centre was €14.50.  When he was moved at the time of the disciplinary sanction, he was paid a lower hourly rate of €12.50.  When he moved to Leopardstown, he was paid €13.00 per hour.  A copy of the complainant’s payslip which was included in the respondent’s book of documents at the hearing shows that, by the time of his resignation, his hourly rate of pay was €16.11.   

In his complaint under the Payment of Wages Act 1991, the complainant claims that, for a number of months, he was paid a rate of pay less than that provided for in his contract of employment, which was €13.50 per hour.  In his complaint under TUPE, he claims that his rate of pay was changed after he transferred to the respondent from Provincial Security Services.  Under the heading of the Terms of Employment (Information) Act 1994, he claims that he was asked to agree to new hourly rate in a new contract of employment which he did not accept.  It is apparent therefore, that each of the complaints brought forward for investigation concern the same issue; that is, the reduction in the complainant’s hourly rate of pay in February 2022.  I understand that the change in the hourly rate arose from the removal of a premium that applied to security guards at the construction centre and at the data centre in Clonee.  This occurred when the complainant was moved to a new site in Clonee in February 2022.   

On behalf of the respondent, Mr Ryan argued that, as these complaints were submitted to the WRC on November 17th 2023, they are outside the time limit for submitting complaints which is prescribed at s.41(6) and (8) of the Workplace Relations Act 2015.  Before giving any consideration to the substantive issues, I must therefore determine if I have jurisdiction, in accordance with s.41, to investigate the complainant’s claims.

The complainant claims that, in breach of s.6 of the Payment of Wages Act 1991, his wages were reduced in February 2022 when he was assigned as a security guard to a different client’s site.  He claims that this was a breach of TUPE Regulations, because the respondent reduced his hourly rate to a lower rate compared to the rate he was paid until his transferred from Provincial Security Services.  He claims also that, in breach of the Terms of Employment (Information) Act 1994, his employer attempted to change his hourly rate of pay in his contract of employment.

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

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.

It is clear from this that a complaint may only be considered if it is presented before the expiration of six months after the date of the alleged contravention.  In the narrative of his complaint under the Payment of Wages Act, the complainant said, “My issue is when I was removed from …Data Centre, Clonee.”  I understand that this occurred in February 2022 and that, from that point on, he was not paid a premium that applied to employees assigned to that particular client.  It is apparent from the complainant’s evidence at the hearing that these three complaints are associated with the fact that, in February 2022, he was moved to a different site which attracted a lower hourly premium compared to the site he worked on previously.  Having submitted this complaint to the WRC on November 17th 2023, the timeframe for my investigation of breaches of the relevant law is from May 18th until November 17th 2023. 

In his evidence, the complainant said that he was asked to sign a new contract in February 2022, when he was moved to the new site in Clonee.  He said that he was offered this contract again on September 14th 2023.  For the respondent, the HR business partner, Ms Fitzgerald said that this was the same contract being offered again, because the complainant refused to sign the contract issued in February 2022 and this was flagged by the “Docusign” system.

Section 41(8) permits an extension of the time limit to 12 months:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than six months after such expiration) as the case may be, if he or she is satisfied that the failure to present the case or refer the dispute within that period was due to reasonable cause.”

The complainant did not seek an extension of the time limit and, even if an extension was granted, this brings the time limit for submitting his complaint to February 2023.  As these complaints were submitted to the WRC on November 17th 2023, 20 months after the latest date on which the alleged contraventions occurred, they have been presented eight months after the expiry of the extended time limit.  I find therefore that, due to the expiry of the time limit, I have no jurisdiction to adjudicate on these complaints.

I decide that I have no jurisdiction to adjudicate on these complaints because they have been submitted outside the time limit prescribed at section 41(6) and (8) of the Workplace Relations Act 2015.

Time limit for submitting a complaint.