Complainant

Respondent

Parties

Umarjon  Muradov

Bgs Security Limited trading as Bgss

Representatives

David Cotter of the Independent Workers' Union

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00067471-001

18/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00067471-002

18/11/2024

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

CA-00067471-003

18/11/2024

The Complainant joined the Respondent on the 30th of May 2024 working as a security guard at a number of major retailers in Dublin. He resigned after three months work following a period of non-payment of wages. He submitted these complaints in November 2024.

The Complainant’s union official Mr Cotter outlined that the Respondent has not attended the WRC on a number of occasions and had engaged with the IWU on a sporadic basis. Mr Cotter had sent them a copy of the Complainant’s submissions before the hearing and had talked to the owner before the hearing date.

The Complainant’s union official Mr Cotter gave detailed oral and written submissions on his behalf.

The Complainant gave evidence under affirmation. Mr Cotter also gave evidence under affirmation.

The Complainant submits that they were working long hours alone, often at the entrance of different city centre retailers, without backup or support aside from the occasional supervisor dropping around. This was hard work involving unsociable hours. The Complainant experienced challenging behaviour from members of the public as well as threats and assault.

The Complainant is surprised that the Respondent does not seem concerned about the WRC proceedings and failed to even attend the hearing.

The Respondent did not attend the hearing. I am satisfied that notice was sent to their registered address by post. Mr Cotter confirmed he had sent his submissions to the Respondent and had spoken with the owner in advance of the hearing and he believes they were aware of the hearing.

I also note their existing pattern on non-attendance as evidenced by the below referenced WRC decisions.

Complaint under the Payment of Wages Act, 1991 - CA-00067471-001

The Complainant’s evidence was that he was paid €12.90 per hour for the first four weeks of employment and then was brought up to €14.50 per hour as a new ERO came into effect.

However, after the hourly rate went up on paper the Respondent essentially stopped paying him.

He first went to the Respondent on this issue on the 31st of July and they agreed they needed to pay him for June. However, the problem persisted. He was eventually paid €500 as a one off. He is still owed approximately €3800.

The Complainant furnished copies of Respondent emails where they had acknowledged that he was owed €3712.84.  He and his union engaged extensively with the Respondent and they kept promising but failing to pay.

The Complainant submitted copies of payslips that the Respondent generated but failed to pay. He also submitted his own working time records.

The Payment of Wages Act 1991 provides the following definition of “wages” at section 1:

"wages", in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind,

(vi) any payment by way of tips or gratuities.

Sections 5(1) and 5(6) of the 1991 Act provides:

5(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

…..

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

As outlined above the non-payment of wages that are properly payable to an employee is an unlawful deduction by the employer.  The question to be decided in this complaints is whether the wages claimed were properly payable.

On the basis of the uncontested evidence of the Complainant supported by a number of documents furnished via his union I am satisfied that €3712.84 is properly payable to him and was not paid and was therefore an unlawful deduction as prohibited by the act. 

The Complainant is entitled to payment of compensation of €3712.84 less any lawful deductions. I consider this to be reasonable in the circumstances.

Complaint under Terms of Employment (Information) Act, 1994 - CA-00067471-003

The Complainant evidence was that shortly after starting working for the Respondent he was shown a contract while working at a client site by a supervisor. He was asked to sign it which he did. The contract was then taken off him and he was told he would get a copy. He was never given a copy.

This falls short of the Respondent’s obligations to give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment….. Aside from the fact that the Respondent has not attended or provided a copy of this contract, for the above legislation to be satisfied the Complainant needs to receive the particulars, not sign them and have them taken off him.

Section 7 d) of the act sets out my jurisdiction for redress: in relation to a complaint of a contravention under change section 3, 4, 5, 6, 6D, 6E, 6F, or 6G,  and without prejudice to any order made under paragraph (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

In the circumstances, and in particular noting the Complainant’s relatively short service, I award approximately two weeks wages, that being €1200.

Complaint under Section 45A of the Industrial Relations Act, 1946 - CA-00067471-002

The purpose of the 1946 Act as set out in its long  title is to make further and better provision for promoting further and better provision for promoting harmonious relations between worker and their employers and for this purpose to establish machinery for regulating rates of renumeration and conditions of employment.

The security industry is regulated by an Employment Regulation Order (“ERO”) created under this act by way of a process initiated by a Joint Labour Committee (“JLC”) which involves representatives of security companies and unions establishing minimum binding terms and conditions.

The ERO covers workers employed by a security firm to provide security or surveillance in order to protect persons and property. More specifically they workers covered engage in the prevention and detection of theft, unauthorised entry and enforcement of rules. On the evidence available to me I am satisfied that the Respondent and Complainant are both encompassed by the ERO outlined in SI 30 of 2024.

The minimum rate of pay as set out in Section 1.1 of the ERO is €14.50 per hour. The evidence of the Complainant was that the Respondent simply failed to pay this or even any wage approaching this figure. They only paid him €500 for the months of June, July and August during which he worked excessive hours. The Respondent conceded that they owed the Complainant the wages but simply failed to follow through with payment. When the Complainant would raise the issue with the Respondent his evidence was that they would just tell him to keep working and continued to promise to pay him.

The Complainant outlined to the WRC that he is extremely shocked and surprised by this behaviour. He says he was warned by members of the public who saw him in the BSG uniform and told him they didn’t pay their staff. He says he didn’t believe these people because he was working in Europe and thought employers had to obey the law here. He does not understand why the Respondent appears to be so unafraid of the state authorities while flaunting the law.

The Respondent did not pay the Complainant unsociable hour premiums in June, July and August though these are required by Section 1.2 of the ERO. The Complainant’s evidence was that he regularly worked more than three hours within the required window. His evidence was that they did not pay him any annual leave or public holidays as required in Section 2.1 and 2.2 of the ERO.

Though Mr Cotter was not directly involved in the JLC process he was able to provide general evidence of the importance of the ERO from his perspective as a union official who is active in the security sector. He pointed out that this is an extremely competitive, heavily outsourced, sector where the main overhead is labour costs. Security companies are constantly bidding for each other’s work and as such without the protections of the order each company would be forced into a race to the bottom which would lead to a general diminishment workers’ terms and conditions of employment and this would potentially result in industrial unrest.

Mr Cotter outlined that the Respondent’s treatment of the Complainant followed a pattern of behaviour he had seen them display when dealing with other workers. Specifically, that they tend to pay the first month’s wages and then cease paying the worker regularly and limit themselves to partial payments when chased by the worker. Thus, they create an environment where the worker must leave his job following a few months of providing free labour to the Respondent which they have presumably charged their clients for.

There are a number of recently published WRC decision corroborating the Complainant and Mr Cotter’s evidence that non-payment of wages is a persistent practice of the Respondent.

ADJ-00052170 in which the Complainant Bhoopathy Janan Manjula Ravichandran worked for the Respondent for approximately a month and despite numerous requests had not been paid.  Their complaint under the Payment of Wages Act was determined to be well founded.

ADJ-00053322 in which the Complainant Prathik Rao worked for the Respondent for approximately two months and despite numerous requests had not been paid. Their complaint under the Payment of Wages Act was determined to be well founded.

ADJ-00053773 in which the Complainant Muhammad Saqlain Ashraf worked for the Respondent for approximately two months and despite numerous requests had not been paid. Their complaint under the Payment of Wages Act was determined to be well founded.

ADJ-00052820 in which the Complainant Deepak Bala Krishnan worked for the Respondent for approximately four months and had not been paid for two months work. Their complaint under the Payment of Wages Act was determined to be well founded.

ADJ-00053388 in which the Complainant Ikenna Uzokwe worked for the Respondent for approximately two months and one week and had not been paid for two months. Their complaint under the Payment of Wages Act was determined to be well founded.

ADJ-00054521 in which the Complainant James Adewale Ajibola had worked for the Respondent for approximately five weeks and had not been paid. Their complaint under the Payment of Wages Act was determined to be well founded.

The Respondent in failing to pay the Complainant is given an obvious unfair and substantial advantage over its law-abiding competitors. The Complainant provided evidence that he acted as a security guard at large city centre-based retail franchises of Centra and Spar as well as at a suburban franchise of Supervalu. As such the Respondent are clearly making significant inroads into the security market in Dublin aided by this practice. 

Section 45A of the 1946 act provides that:

A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of an employment regulation order in relation to a worker shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the employment regulation order, or

(c) require the employer to pay to the worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but notexceeding 2 years’ remuneration in respect of the worker’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

On the basis of the above evidence, I am satisfied that the complaint is well founded.

While my determination must centre on the Complainant, I believe that in determining the appropriate compensation it is relevant that the Respondent is engaged in a wider practice in not paying wages and I am of the view that this is generally undermining of the JLC regime established under the relevant act.

Having regard to all the circumstances I am of the view that the maximum award of two years renumeration is just and equitable.

With reference toS.I. No. 287/1977 I determine that the Complainant’s weekly wage for the purposes of this act was €600. Two years renumeration at this rate is €62, 568. In the circumstances I think it is reasonable to deduct the Complainant’s award under the payment of wages act as there is a degree of overlap between the two claims.

As such I award the Complainant €58,855 in compensation..

CA-00067471-001

I find the complaint well founded and direct the Respondent to pay the Complainant compensation of €3712.84 less any lawful deductions.

CA-00067471-002

I find the complaint well founded and direct the Respondent to pay the Complainant compensation of €58,855.

CA-00067471-003

I find the complaint well founded and direct the Respondent to pay the Complainant compensation of €1200.