Complainant

Respondent

Parties

Jean Marie  Coumbassa

Bgs Security Ltd, in liquidation

Representatives

Stewart Reddin, Dublin South Citizens Information Service

Steven Gyurko,  Musiol Advisory Limited

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-00067963-001

09/12/2024

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

CA-00067963-002

09/12/2024

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

CA-00067963-003

09/12/2024

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

CA-00067963-004

09/12/2024

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

CA-00067963-005

09/12/2024

The Complainant commenced employment as a static security officer with the Respondent from 22/04/2024 until 26/07/2024.  He was paid €12.90 per hour and worked 12 hour shifts seven days per week.  The Complainant received no pay slips in June 2024 despite receiving a pay slip.  This occurred again in July 2024 and as the Respondent failed to pay any wages, he ceased employment on 26/07/2024.  He submitted his complaints to the WRC on 09/12/2024.

The Complainant was represented by Stewart Reddin, Senior Information Officer, Dublin South Citizens Infoirmation Centre and Daniel McDonald, Dublin South Citizens Information Centre.  The Complainant had some difficulty accessing the remote hearing and, on his instructions, his representatives presented the complaints on his behalf.

CA-00067963-001: It was submitted on behalf of the Complainant that the Respondent failed to pay his wages for the hours he worked for the months of June and July 2024.   While pay slips were issued there were no payments made.  The Complainant and subsequently his representatives made many attempts to contact the Respondent to resolve the matter but without success.  It was submitted that the amounts due are properly payable and therefore the deduction is unlawful.  The amount of gross pay due to the Complainant is €9,198 and this is verified by the pay slips for the relevant months.

In addition to this the Complainant worked a total of 1,171.25 hours between the months of April and July 2024.  He is entitled to 8% of the overall hours worked as annual leave.  This amounts to a total of €1,358.65 calculated on the basis of 1,171.25 x 8% which is 93.7 hours paid at 14.50 per hour.

CA-00067963-002, CA-00067963-003, and CA-00067963-004:  (Hours of Work)

It was submitted on behalf of the Complainant that he regularly worked 12 and 13 hour shifts each day, seven days per week.  He did not receive the statutory break times or weekly rest periods contrary to sections 12 and 13 of the Organisation of Working Time Act, 1997.  On occasions he was rostered to work in two different locations on the same day with a one-hour break between shifts at these locations.   Based on the rosters issued by the Respondent the Complainant also worked 1,171.25 hours between 22/04/2024 and 26/07/2024 and this calculates  an average 87.4 hours per week.

CA-00067963-005:

The Respondent failed to provide the Complainant with a statement of his terms of employment within one month of the date of his commencement of employment or at any point thereafter.  It was submitted on behalf of the Complainant that this is a breach of the Terms of Employment (Information) Act, 1994 as amended.  It was also submitted that as the Complainant worked for the Respondent for a period greater than one month he is entitled to make a complaint under S.7(1A)(a) of the Terms of Employment (Information) Act, 1994.

In a closing statement it was submitted on behalf of the Complainant that these complaints represent a most egregious breach of the Complainant’s rights and entitlements.  The Complainant is one of many similar employees who have been treated in this manner by the Respondent. 

Mr Steven Gyurko, Insolvency Manager, Musiol Advisory Limited outlined to the hearing that they were appointed by the High Court as liquidators on 10/11/2024.  They have been unable to make any contact with the Respondent company and there is no evidence of them at any of the addresses previously used by them.  Mr Gyurko noted that there is no information available to them apart from what is supplied by Revenue and the Banks.  In that context the liquidators are not in a position to deny or confirm any of the claims advanced on behalf of the Complainant.  Mr Gyurko noted that the Respondent company stopped producing payroll from 2024 and there were no Revenue filings made during that period.  Mr Gyurko stated that he wished to confirm that there are no funds available to the liquidators.

I have carefully reviewed the evidence adduced during the course of this hearing.  The Complainant had the benefit of having competent and experienced representatives.  All of the evidence adduced on behalf of the Complainant was unchallenged and deemed factual unless I have not found otherwise during the course of my investigation.

It is not disputed that the Complainant commenced employment on 22/04/2024 until 26/07/2024. The Complainant was not paid for any of his shifts for the months of June and July 2024.  The Complainant and later his representatives have made exceptional efforts to try and locate the Respondent or its directors.  The Respondent is now in liquidation.

This Complainant is one of many similar employees who have been treated in an alarming manner by a shameless, ruthless and illegal manner by their employer.  The WRC is no stranger to this employer and this case represents a further example of the dishonest and perfidious behaviour by the Respondent company.

CA-00067963-001:  This is a complaint seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act, 1991.

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

“(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.”

In Marek Balans v Tesco Ireland Limited [2020] IEHC 55 Finnegan J. considered Section 5 of the Act as follows:

“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”.

What Amount is Properly Payable?

The Act provides that where the total amount of wages properly payable to an employee is not paid, any deficiency is regarded as a deduction. Consequently, to ground a claim under the Payment of Wages Act 1991 an Adjudication Officer needs in the first instance to ascertain what wages are properly payable. Based on the pay slips issued by the Respondent company there is no ambiguity in relation to what the Complainant should have received.

Section 5(1) of the Act prohibits an employer from making deductions to an employee's wages except in accordance with the provisions of that section.

Based on the evidence provided to me I am satisfied that the Complainant was not paid for the months of June and July 2024.  Based on the pay slips issued the Complainant is due a total of €9,198 gross and €6,919.18 net. 

CA-00067963-002: This is a Complainant seeking adjudication by the WRC under Section 27 of the Organisation of Working Time Act, 1997.  He submits that he did not receive the statutory break times contrary to sections 12 and 13 of the Organisation of Working Time Act, 1997. 

The Relevant Law

Section 12 of the Organisation of Working Time Act places a statutory obligation on employers to ensure that an employee is permitted to take breaks as follows:

“(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 Complainant did not receive daily rest period which is in contravention of the Act.  This complaint is well-founded and I award the Complainant the sum of €1,000 as compensation.

CA-00067963-003, and CA-00067963-004:  (Hours of Work)

Section 13 of the Organisation of Working Time Act places a statutory obligation on employers to ensure that an employee is permitted to take rest breaks as follows:

“(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsection (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.”

The roster issued to the Complainant by the Respondent company demonstrates that he was working 12 and 13-hour shifts per day over a seven-day period.  From an analysis of the records the Complainant worked an average of 87.4 hours per week during his employment. I accept the evidence provided by the Complainant’s representatives, including the relevant rosters, and I find this complaint to be well-founded.  Due to the seriousness of this breach I award the Complainant compensation of €2,000.

CA-00067963-005:  This is a complaint seeking adjudication by the WRC under Section 7 of the Terms of Employment (information) Act, 1994.  The Complainant commenced employment on 22/04/2024 and when his employment ceased on 26/07/2024 he had not received a statement of his terms and conditions.

Section 3(1A) of the Terms of Employment (Information) Act, 1994 states that-

“(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days 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 2014); 

(c) 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; 

(d) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000; 

(e) the number of hours which the employer reasonably expects the employee to work — 

(i) per normal working day, and 

(ii) per normal working week.”

Section 3 of the Terms of Employment (Information) Act 1994 provides for further details to be given to an employee not later than one month after the commencement of the employee’s employment.

The Terms of Employment (information) Act, 1994 implements an EU directive and applies to all persons working under a contract of employment or apprenticeship (whether on a fulltime or part time basis).  It includes persons working through an employment agency where the party remunerating is responsible for the provision of the said statement of terms.  The Act also provides that an employer must notify the employee of any changes in the particulars already detailed in the statement of terms.

It was not disputed that the Complainant did not receive such a document.   As there is an onus on the Respondent to provide a signed and dated copy and to retain such a document for at least a year after the employment ends, I find that there was a contravention of the Act during the relevant period.  Since employment has ended, there is no longer a need to compel the provision of the terms.

I have decided that this complaint is well-founded and I believe that the full compensatory limit under section 7(2) should be applied.  I therefore order that the Respondent pay the Complainant the sum of €3,013 representing an average of four week’s full-time remuneration which I consider to be a just and equitable sum having regard to all the circumstances in this case.

CA-00067963-001: I find that this complaint is well-founded and, based on the pay slips issued but not paid,  the Complainant is due a total of €9,198 gross or as  €6,919.18 net. 

CA-00067963-002: I find that this complaint is well-founded and I award the Complainant the sum of €1,000 as compensation.

CA-00067963-003 and CA-00067963-004: I find these complaints to be well-founded.  Due to the seriousness of this breach I award the Complainant compensation of €2,000.

CA-00067963-005:  I have decided that this complaint is well-founded and I order the Respondent to pay the sum of €3,013 representing an average of four week’s remuneration

Wages. Working time. Rest Breaks. Terms and conditions.