Complainant

Respondent

Parties

Jama Barre  Adan

BGS Security Limited

Representatives

Rose Gartland Daly Lynch Crowe & Morris Solicitors LLP

 N/A

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-00068442-001

06/01/2025

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

CA-00070397-001

31/03/2025

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

CA-00070422-001

31/03/2025

The Complainant worked as a security officer with the Respondent from 12th October 2024 to the 21st October 2024. Despite receiving a pay slip, he was not paid the money due to him and so he submitted this complaint to the WRC seeking to have the monies due to him paid by the Respondent.

The Complainant gave evidence on his own behalf, at times with the assistance of an Interpreter.

CA-00068442-001 – Complaint under the Payment of Wages Act, 1991

The Complainant stated that he worked 73.5 hours for the Respondent. He provided a pay slip dated 31st October 2024 which showed a gross amount due of €1,066.70 and a net amount due to him of €1,060.38. The Complainant gave evidence that he never received payment for this amount. He also provided a copy of Whatsapp messages between himself and the manager he reported to in the Respondent. The messages show numerous attempts by the Complainant to find out when he would receive his wages.

CA-00070397-001 – Complaint under Section 45A of the Industrial Relations Act, 1946

The Complainant says that he did not receive the 'unsocial hours premium' of €12.60 per shift for two shifts worked in October 2024. He worked the following shifts: 14th - 15th October 2024, 11pm - 8.30am 15th - 16th October 2024, 10pm - 8.30am. He says that this is in breach of an Employment Regulation Order which came into effect on the 1st of July 2024. As he worked between 9pm - 7am for two shifts, he should have received the unsocial hours premium of €12.60 per shift, totalling €25.20

CA-00070422-001 – Complaint under of the Organisation of Working Time Act, 1997 in relation to annual leave entitlement

The Complainant says that he was entitled, under Section 19 (1)(c) of the Organisation of Working Time Act 1997, to paid annual leave of 8% of the hours he worked. He says that this equals 5.88 hours and gave evidence that he never received payment for these hours.

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 30th April 2025. I note that a firm of solicitors wrote to the WRC by letter dated 29th January 2025 stating that they were coming on record for the Respondent in relation to Complaint Number CA-00068442. However a further letter was received on 18th February 2025 stating that they were no longer acting for the Respondent in this matter.

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 to one of 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.

CA-00068442-001 – 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 a pay slip showing that these wages were properly payable and his uncontested evidence is that it has 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 €1,060.38 which was properly payable to the Complainant has not been paid.

CA-00070397-001 – Complaint under Section 45A of the Industrial Relations Act, 1946

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.

The employment regulation order referred to in this case is S.I. No. 319/2024 - Employment Regulation Order (Security Industry Joint Labour Committee) 2024. This Order came into effect on the 1st July 2024. It states, at section 2, that:

An unsocial hours premium will be paid for hours worked between 21:00 hours and 07:00 hours, provided the worker, works at least 3 hours in that period. This will apply as follows:

From the date of this Order, a minimum payment of €12.60 per shift.

The uncontested evidence of the Complainant is that he worked two such shifts, one on 14th - 15th October 2024 and a second on 15th - 16th October 2024. I am satisfied that the complaint is well founded and the Complainant is entitled to the payment of the unsocial hours premium for these two shifts, which amounts to €25.20.

CA-00070422-001 – Complaint under of 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 stated that he is due 5.88 hours of annual leave but had not been paid this amount by the Respondent.

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 73.5 x 8% = 5.88 hours of annual leave. 5.88 hours @ €14.50 per hour = €85.26. Based on the uncontested evidence of the Complainant, I find that this complaint is well founded.

For the reasons set out above, I find that the within complaints are well founded.

I direct the Respondent to pay the Complainant the net amount of €1,060.38, being an unlawful deduction from his wages within 42 days of the date of this decision. I further direct the Respondent to pay the Complainant the gross amount of €110.46, less any lawful deduction, which said amount comprises €25.20 for unpaid unsocial hours premium and €85.26 for unpaid annual leave entitlement within 42 days of the date of this decision.

Payment of wages – annual leave entitlement – breach of ERO