Complainant

Respondent

Parties

Fathi Soualhi

Securitas Security Services (Ireland) Limited

Representatives

Self

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-00067464-001

18/11/2024

With the agreement of all parties, the Respondent name was amended to reflect it’s full title which is Securitas Security Services (Ireland) Limited. The parties are named in the heading of this decision, but are referred to as “Complainant” and “Respondent” throughout the body of this decision.

Evidence was given by the Complainant on oath and by Mr. Brian Doyle, Key Account Manager, of the Respondent by affirmation.

The Complainant commenced work with the Respondent on 6th June 2016 and remains an employee at the date of the hearing. His claim is brought under section 6 the Payment of Wages Act, 1991 for the reasons set out below.

The Complainant has brought this claim because his wages have been vastly reduced as a result of a site move. He had been working on a particular site and was earning approximately €1,500 while there. However, after being moved to another site, his wages have been reduced to €1,044. He stated that his rate of pay had been €20.79 per hour but was now reduced to €14.50 per hour.

He did not agree to this deduction and did not sign a new contract for a lower rate.

The Respondent’s case is that the rate the Complainant had been receiving was site specific, and that he had in fact agreed to any reduction due to a clause in his contract which highlighted that the rate could change if he moved sites. The Respondent argued that the net issue was whether or not the deduction was unlawful, and stated that it was not an unlawful deduction because the Complainant had agreed to these terms in his contract.

The Respondent, in written submissions, outlined that a full disciplinary process took place in September 2024. One of the outcomes of the disciplinary process was that the Complainant was removed from the Grangecastle client site (the Grangecastle site). As of 23rd September 2024, the Complainant no longer worked on this site. His rate of pay therefore reduced from the client specific rate of €20.79 to the contractual base rate of €14.50.

The Respondent relied on two specific contractual provisions. They are Clause 2, paragraph 3 and Clause 6, paragraph 2 of the contract of employment that was signed by the Complainant on 18th July 2016.

Clause 2, paragraph 3 states as follows:

“It is a condition of your employment that you agree to work at any of the Company’s contract assignments or sites within reasonable travelling distance from your home. It is also a condition of your employment that your employment remains at all times subject to continuing customer approval and satisfaction. However, requests from customers to remove or ban any Security Officer from their sites will be investigated prior to being actioned. Requests from customers to remove Security Officers from their sites will be adhered to, if the Security Officer has a grievance he/she can if they so wish, utilize the Grievance Procedure. The Company will seek to find you alternative work and you must co-operate fully with the Company.”

Clause 6, paragraph 2 states as follows:

“The hourly rate of pay applicable to this position is €11.50 per hour. (This pay rate is site specific for the Screening Officer position Grangecastle Contract only.) Increases in the basic rate of pay may be negotiated from time to time with your union. Site Premium rates are agreed by the customer on an individual basis and are strictly site specific. “

Since signing the contract in 2016, the Complainant’s base rate of pay has increased over the years and is now €14.50 per hour.

The Respondent highlighted a table on page 26 of it’s submissions. This table outlines that the number of hours worked by the Complainant between 23rd September 2024 and the date of the within complaint, 18th November 2024, was 187.25. The difference between the rates of €20.79 (the Grangecastle site specific rate) and €14.50 (the base rate) is €6.29. It is the Respondent’s case therefore that the Complainant is seeking a maximum of €1,177.80, being 187.25 x €6.29.

It is the Respondent’s position that sections 5(1)(b) and (c) of the Payment of Wages Act, 1991 apply in this case. Namely that:

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

[…]

(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.

The Respondent states that the above terms of the contract of employment authorise the deduction and that the Complainant had given his prior consent to this in writing, both by signing the contract and acknowledging the terms of the Company Handbook.

Cross examination of the Complainant

The Respondent’s representative put a number of questions to the Complainant which included:

-          Whether the Complainant accepted that the contract submitted by the Respondent was the contract he had signed in July 2016. The Complainant accepted that it was.

-          Whether the Complainant accepted the table at page 26 of the Respondent submissions, that the amount being sought was €1,177.80. The Complainant initially did not accept this, however he went on to accept that his last date on the Grangecastle site was 21st September 2024. He stated that he stopped working there on 22nd July 2024, was on holiday for three weeks, was suspended on 12th August and removed from the site on 21st September. He therefore accepted that the calculation of €1,177.80 up to the date of the complaint form was correct.

-          The Respondent’s Company Handbook, specifically page 31 of the Respondent’s submissions, was put to the Complainant. That states:

Pay Decreases due to being Site Banned at the Customer’s Request

Continued employment is conditional upon and subject to continuing customer approval. All requests by a customer to remove an employee from their assignment will be investigated before any action is taken. However, if the Company decides than an employee must be reassigned, this will generally result in a reduction in existing salary to reflect the rate for the new position. The employee will receive a letter outlining the reasons for the decision as well as the confirmation of the new pay rates.

The Complainant was asked if he accepted the above statement in the Company Handbook. He replied that he did not accept it and stated that he didn’t sign a new contract and this was 9 years ago.

-          The Respondent directed the Complainant’s attention to page 162 of it’s submissions, which is a declaration that the Company Handbook has been issued, read and understood, and asked if the signature on this page was the Complainant’s. The Complainant acknowledged that it was. The page is dated 7th June 2016.

The Respondent’s position is that the Complainant is no longer entitled to a site specific premium that was payable by the client of that site. It acknowledges that there has been a reduction in the Complainant’s wages, but states that this is authorised both by virtue of a term of the employment contract and prior consent in writing of the Complainant. The reason for the reduction is that the Complainant had been receiving the premium but after being removed from this site following a disciplinary process he reverted to the basic rate of pay.

The Complainant’s complaint is made under the Payment of Wages Act, 1991. I wish to emphasis therefore that I will investigate the complaint under this legislation. It is not my role to examine the circumstances which led to the Complainant leaving the Grangecastle site, but rather to determine if the reduction in wages which resulted from this move are lawful under the Payment of Wages Act, 1991.

Section 5 of the Payment of Wages Act, 1991 provides as follows:

“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.”

And

“5(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.”

Section 5(6) of the Payment of Wages Act, 1991 was considered in Marek Balans v. Tesco Ireland Limited [2020] IEHC 55. In that case, MacGrath J. re-affirmed the proposition that the first matter to be determined is what wages are properly payable under the contract of employment. If it is established that a deduction within the meaning of the Payment of Wages Act, 1991 has been made from the wages properly payable, it is then necessary to consider whether that deduction was lawful. MacGrath J. stated at paragraphs 34 and 35 of the judgement:

“Section 5 of the Act of 1991 prohibits the making of deductions from wages save in certain circumstances. Section 5(6) provides that where 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, then, except insofar as the deficiency or non – payment is attributable to an error of computation, the amount of the deficiency or non – payment should be treated as a deduction made by the employer from the wages of the employee on the occasion.

Central to the court’s analysis must be the concepts of wages properly payable and the circumstances in which, if there is a deficiency in respect of those such payments, it arose as a result of an error of computation.”

The question for me to determine in the first instance therefore is what wages are properly payable under the contract of employment.

Both parties agreed that the amount for consideration is €1,177.80, which represents the premium that the Complainant would have received if still working at the Grangecastle site from 23rd September 2024 to 18th November 2024. I must determine if this amount was properly payable to the Complainant under the contract of employment.

Two specific contractual provisions as well as the company handbook, both of which contain the Complainant’s signature, were identified by the Respondent. Those provisions are set out in full in the Summary of the Respondent’s case and I will not repeat them here. However, it is clear to me from these clauses that a premium is payable for the Grangecastle site and that if the Complainant left, or was moved, from this site then that premium would no longer be payable.

I find that it is a term of the contract of employment between the parties that a site specific premium was available to the Complainant when he worked at the Grangecastle site. As the Complainant no longer works on that site, the payment of the premium no longer applies.

Accordingly, I am satisfied that the amount of €1,177.80 was not properly payable to the Complainant. Essentially, no deduction has been made because the Complainant was not entitled to this amount under his contract of employment.

As the amount of the premium was not properly payable in the first instance, then it has not been established that any deduction within the meaning of the Payment of Wages Act, 1991 was made. The Complainant has not established a contravention of section 5 of the Payment of Wages Act, 1991. For that reason, I find that the complaint is not well founded.

For the reasons set out above, I find that this complaint is not well founded.

Payment of Wages – Properly payable – Unlawful deduction