Complainant

Respondent

Parties

Abubakar  Abubakar

Bgs Security Limited

Representatives

Self

None

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-00067950-001

09/12/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00067950-002

09/12/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00067950-003

09/12/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00067950-004

09/12/2024

The Complainant worked as a security officer with the Respondent from 28th July 2024 to 18th August 2024. Despite receiving payslips, he was not paid the money due to him and so he submitted this complaint to the WRC on 9th December 2024 seeking to have the monies due to him paid by the Respondent.

The Complainant gave evidence on his own behalf with the assistance of an interpreter, Mr. Abdu Abib Sharif.

The Complainant also submitted further documents at the hearing. These included 2 payslips; bank statements; copy contract of employment and associated induction material.

CA-00067950-001 – Complaint under the Payment of Wages Act, 1991

The Complainant provided two pay slips. The first dated 31st July 2024 and showing a net amount due of €211.30. The second dated 31st August 2024 and showing a net amount due of €1,994.20. The Complainant gave evidence that he received payment for the first payslip in the amount of €211.30, but never received payment for his second payslip in the amount of €1,994.20. The Complainant provided bank statements up to February 2025 which showed only the payment in the amount of €211.30 from the Respondent. He gave evidence that he has not received €1,994.20 as of the date of the hearing.

CA-00067950-002 – Complaint under the Organisation of Working Time Act, 1997 in relation to annual leave entitlement

The Complainant stated that he accrued 158 hours of annual leave but had not been paid this amount by the Respondent.

CA-00067950-003 – Complaint under the Organisation of Working Time Act, 1997 in relation to Sunday allowance

The Complainant withdrew this complaint at the hearing. It was apparent from his payslip that, although he had not received payment for working on Sundays, it had been calculated on his payslip.

CA-00067950-004 – Complaint under the Organisation of Working Time Act, 1997 in relation to hours of work

The Complainant gave evidence that in every shift that he worked, which were 7 hours in length, he only ever got a single break of 15 minutes in the whole shift. This happened on every shift that he worked.

The Respondent did not attend the adjudication hearing and was not represented. Notice of the hearing arrangements was sent to the Respondent’s registered address on 5th February 2025. I note that a firm of solicitors wrote to the WRC stating that they were coming on record for the Respondent in this matter on 30th January 2025, however a further letter was received on 18th February 2025 stating that they were no longer acting for the Respondent.

Having examined the case file, I am satisfied that the Respondent was on notice of the date, time and venue of the hearing. I note that a letter was received from a firm of solicitors stating that they were coming on record for the Respondent in this matter on 30th January 2025, however a further letter was received on 18th February 2025 stating that they were no longer acting for the Respondent. I am therefore satisfied that the Respondent was aware of the hearing but chose not to attend.

CA-00067950-001 – Complaint under the Payment of Wages Act, 1991

Section 5(6) of the Payment of Wages Act 1991 provides that, to ground a complaint under the Act, wages must be properly payable:

(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.

I accept, based on the uncontested evidence of the Complainant, that the amount claimed for constitutes properly payable wages that have not been paid to the employee. The Complainant provided pay slips showing that these wages were properly payable and bank statements to show that it had not been received. As there is no evidence from the Respondent that this was attributable to an error of computation, I am satisfied that there has been a deduction from the wages of the Complainant. I am further satisfied, again based on the uncontested evidence of the Complainant, that this deduction is unlawful and is in contravention of section 5 of the Payment of Wages Act, 1991.

As the Complainant’s evidence is uncontested and he has proved the elements of his claim, I find that this complaint is well founded.  I find that, in breach of section 5 of the Payment of Wages Act, 1991, net pay amounting to €1,994.20 which was properly payable to the Complainant has not been paid.

CA-00067950-002 – Complaint under the Organisation of Working Time Act, 1997 in relation to annual leave entitlement

Section 19(1) of the Organisation of Working Time Act, 1997 provides for the calculation of annual leave entitlement. It states:

“19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

The Complainant’s complaint form states that he accrued 158 hours of annual leave but had not been paid this amount by the Respondent. When asked how this was calculated, the Complainant said that he had some help with the form so was not sure.

From the payslips submitted into evidence, it was apparent that the Complainant worked a total of 158 hours for the Respondent. When asked if he was happy that the payslips reflected all of the hours that he worked, the Complainant replied that he was happy that they showed this.

The number of annual leave hours claimed by the Complainant in the complaint form is incorrect, however I am satisfied that he is due payment for his annual leave based on his uncontested evidence.

As outlined in section 19 above, the Complainant is entitled to 8% of the overall hours worked as annual leave. Therefore, the Complainant is entitled to 158 x 8% = 12.64 hours of annual leave. 12.64 @ €14.50 per hour = €183.28. Based on the uncontested evidence of the Complainant, I find that this complaint is partly well founded.

CA-00067950-003 – Complaint under the Organisation of Working Time Act, 1997 in relation to Sunday allowance

The Complainant’s entitlement to this is dealt with in the complaint dealing with his payment of wages. His Sunday allowance was properly calculated in his payslips, and while he did not receive payment of these wages as outlined above, it is encompassed in his payment of wages claim. This specific complaint is treated as withdrawn.

CA-00067950-004 – Complaint under the Organisation of Working Time Act, 1997 in relation to hours of work

Section 12 of the Organisation of Working Time Act, 1997 states that:

“12.—(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).”

The uncontested evidence of the Complainant was that his shifts were 7 hours in length, but he only ever got a single break of 15 minutes. This is in contravention of section 12(2) above which states that an employer shall not require an employee to work for more than 6 hours without a break of at least 30 minutes.  Based on the uncontested evidence of the Complainant, I find that this complaint is well founded.

Section 27(3)(c) of the above act provides that I can make an award of compensation “of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.” In circumstances where the Complainant worked 22.5 days for the Respondent without the requisite rest periods, I am awarding compensation in the amount of €350 for a breach of the Respondent’s obligations under section 12(2) of the above act.

I find that the complaints are well founded for the reasons set out above. I direct the Respondent to pay to the Complainant the amount of €2,527.48. That amount being comprised of €1,994.20 in unpaid wages, €183.28 holiday entitlement and €350 compensation for the Respondent’s breach of obligations under the Organisation of Working Time Act, 1997.

Payment of wages – break period – annual leave entitlement