Complainant

Respondent

Anonymised Parties

A Security Guard

An Employer

Representatives

Alexander Homits

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-00067912-001

05/12/2024

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

CA-00067912-002

05/12/2024

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

CA-00067912-003

05/12/2024

The Complainant worked as a Security Guard for the Respondent from the 8th of October 2024 to  the 24th of November 2024. His work involved door supervision.

The Complainant worked approximately 20 to 24 hours per week, earning €14.50 gross per hour. The Complainant submitted his Complaint Form to the WRC on 5th of December 2024.

 The Complainant submits that the Respondent failed to pay him for the hours that he worked in in breach of the Payment of Wages Act 1991, as amended.    The complainant also submitted claims under Section 45A of the Industrial Relations Act, 1946 and a  claim under section 7 of the Terms of Employment (Information) Act, 1994.

The complainant Mr. N , an Egyptian citizen, submits that he  commenced employment with the respondent on the 8 th October 2024 as a Security Officer.

 His work involved door supervision.   He undertook daytime shifts as a security officer at various shops across the Dublin City area as an employee of the respondent.

The complainant’s employment ceased on the 24th of November 2024 after he decided that he could no longer wait to be paid.    He submits that he worked 20-24 hours per week.

After working with the company for over a month, it is submitted that the complainants  employer began to assign additional hours to him but when it came to payment for these additional hours at the end of the month, it was not forthcoming.

Every time he called the office, the complainant  was told that he would get paid on a certain date and when that that date passed, no monies were ever paid to him.

The complainant submits that he received payslips alright but unfortunately no payment. As he had worked these additional hours, payment was drawn out to the point that he was owed a considerable amount in wages.

The complainant submits that he was forced to leave his place of employment after a few months as he needed to be paid wages to live, pay bills, etc.

He submits that he contacted his employer, but no communication was forthcoming as a result of which he had no other choice but seek redress through the auspices of the Workplace Relations Commission.

The complainant submits that the respondent in failing to pay him the wages that is owed for his labour, the company was not in compliance with the Employment Regulation Order that oversees the Security Industry - Employment Regulation Order (Security Industry Joint Labour Committee) 2024 (Statutory Instrument No. 319 of 2024).   The complainant submitted a claim under Section 45A of the Industrial Relations Act, 1946 in this regard.

The complainant also submits that he did not receive any statement of terms or contract of employment.

There was no attendance by or on behalf of 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 dated 29th January 2025 was received from a firm of solicitors stating that they were coming on record for the Respondent in relation the complaints submitted by the Complainant, however a further letter was received on 18th February 2025 stating that they were no longer acting for the Respondent in this matter.

The hearing letter was addressed to the registered office of the Respondent company, and, in all the circumstances, I am satisfied that the Respondent was aware of the hearing but chose not to attend.

On the morning of the Hearing, a grace period was allowed for the Respondent to attend, but the Respondent did not do so.

In the circumstances, I am satisfied that the Respondent was on notice of the Hearing and did not attend.

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

CA-00067912-001

05/12/2024

Sections 5 and 6 of the Payment of Wages Act 1991 as amended (the “PWA”), 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 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.”

And

“6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

(a) the net amount of the wages, or tip or gratuity as the case may be (after the making of any lawful deduction therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.”

Section 5(6) of the PWA 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 PWA has been made from the wages properly payable, it is then necessary to consider whether that deduction was lawful.

The complainant advised the hearing that after working with the company for over a month, the respondent  began to assign additional hours to him but when it came to payment for these additional hours at the end of the month, it was not forthcoming.

The complainant advised the hearing that every time he called the respondents office requesting his wages, the complainant was told that he would get paid on a certain date and when that that date passed, no monies were ever paid to him.

The complainant stated that he received payslips alright but unfortunately no payment. As The complainant worked these additional hours, payment was drawn out to the point that he was owed a considerable amount in wages.

The complainant advised that he was forced to leave his place of employment after a few months as he needed to be paid wages to live, pay bills, etc. He contacted his employer, but no communication was forthcoming.   As a result, he had no other choice but seek redress through the auspices of the Workplace Relations Commission.

The complainant  advised that in an email communication from the respondent  dated 13th December 2024 following a request from the complainants  trade union, the respondent stated that wages to the value of €906.08 would be paid to him including holiday pay by the 19th of December 2024.

Unfortunately, that payment date never happened, and the monies remain outstanding by his former employer.   The complainant wishes to be paid what is properly owed to him.

The complainant provided  two payslips dated 31/10/2024 and 30/11/2024 which the wage amounts outstanding to him.  Pay Period 10 – 31/10/2024 Amount €378.87 (Net) and Pay Period 11 – 30/11/2024 Amount €527.21 (Net) Total €906.08 (Net)

The Complainant’s evidence was uncontested. The Complainant outlined that the Respondent failed to pay him €906.08 for hours that he worked in October/November 2024, in breach of the PWA.

The Complainant also provided a copy of communications between himself and the respondent, in which he sought his outstanding pay and was informed that he would receive his pay.

 These emails outline that the Complainant sought his outstanding pay and that the Respondent replied to indicate that he would be paid.   The Complainant’s uncontested evidence was that he never received this payment.

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

In the circumstances, I find the complaint well-founded. I direct the Respondent to pay the Complainant a total net amount of €906.08 (Net)

For the reasons set out above, I declare the complaint to be well-founded. I direct the Respondent to pay the Complainant a total net amount of €906.08 (Net).

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

CA-00067912-002

05/12/2024

The complainant advised the hearing that his former employer,  in failing to pay him the wages that is owed for his labour, the company was not in compliance with the Employment Regulation Order that oversees the Security Industry - Employment Regulation Order (Security Industry Joint Labour Committee) 2024 (Statutory Instrument No. 319 of 2024).

 Section 15, entitled ‘Payment of Wages’ states that ‘each employer shall have an operational procedure in place for dealing with wage shortages and overpayments to workers.

The key objective shall be to resolve the issue at the earliest opportunity’. It further states that ‘the procedure shall be communicated to all workers, and to the relevant Trade Union, where such applies’.

The complainant in the instant case was not properly consulted on the reasoning why he was not being renumerated for his labour by his former employer nor why there was a wage shortage. He was left in the lurch regarding any payment and the company failed in its duty of care towards him causing much anguished and unnecessary stress.

Section 45A states 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 not exceeding 2 years’ remuneration in respect of the worker’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

I am satisfied that the within complaint is well founded and that the Complainant is entitled to compensation in respect of the breach.

Having regard to all of the circumstances of this case I consider an award of €4,176, i.e. the equivalent of three months wages to be appropriate and I direct the respondent to pay the complainant €4,176, in this regard.

In the circumstances, I declare the complaint to be well-founded. I direct the Respondent to pay the Complainant the sum of €4,176, in compensation in this regard.

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

CA-00067912-003

05/12/2024

Section 3 of the Act states: “3 - (1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, 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, that is to say –

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to —

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made”.

The complainant submits that his former employer, breached the Terms of Employment (Information) Acts, 1994 - 2014 in that he was not issued with a contract of employment after taking up employment with the company and hence his core terms of employment where not outlined to him as require under the Terms of Employment (Information) Acts, 1994 - 2014 and he now wishes to seek an adjudication under Section 7 of the same Acts.

In considering this matter I note that Employees have the right to be presented with a contract of employment, in writing, which sets out their core terms of employment which is also covered under the Employment (Miscellaneous Provisions) Act 2018 and updated by the European Union (Transparent and Predictable Working Conditions) Regulations 2022, but this seems not to be the case for The complainant.   

In the instant complaint the Respondent was obliged to “give or cause to be given to the employee a statement in writing…” and in order to fulfil its obligation the Respondent must provide the Complainant with the written document

 The complainant advised the hearing that the only communication that he received was a message on his mobile outlining the basics of this employment but It was not a proper statement of terms or contract of employment.

In all the circumstances, I declare this  complaint to be well founded and award the Complainant €696, equivalent to 2 weeks’ pay.

In all the circumstances, I declare this  complaint to be well founded and award the Complainant €696, in compensation.