FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MORIARTY'S SUPERVALU (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY GRAINNE LEE, B.L.) DIVISION : Chairman: Mr Duffy Employer Member: Mr McHenry Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Decision WT40/99.
BACKGROUND:
2. The Company owns and operates 3 Supervalu franchises in various different parts of County Dublin, employing a mixture of full-time and part-time staff. The worker involved in this dispute has been employed by the Company, as a shop assistant, for approximately 2 years and works on 3 days each week, for 4 hours, 7 hours and 8 hours, on Wednesdays, Saturdays and Sundays, respectively, at a rate of £3.10 per hour. She also normally works on public holidays. The worker complained that she had been incorrectly paid for the 1998 October public holiday. The matter was the subject of investigation by a Rights Commissioner, who found as follows:-
'It seems to me that the worker is covered by Section 3 (2) of the regulations. That being so, then Section 5 (1) (a) provides the formula for when she works on a public holiday and 5 (2) (a) provides for when she does not work the holiday.
'If she does not work on the holiday then she is entitled to a sum equal to 1/5th of her "normal" weekly hours prior to the holiday. Normal is not defined. I believe that in this case normal has to be considered as 19 hours, which apparently are the core hours worked by her.
'When the worker worked on the October Monday holiday she was entitled under 5 (1) (a) to an extra payment of 7 hours, i.e., her normal payment for working on Sunday (the normal daily hours last worked by her before the Monday).
'If I assume that her normal week is as earlier specified, then her entitlements, when she works the holiday and it falls on the following days, are as follows :-
- Sunday : The relevant rate is 8 hours (as for Saturday)
Monday " " 7 hours (as for Sunday)
Tuesday " " 7 hours (as for Sunday)
Wednesday " " 7 hours (as for Sunday)
Thursday " " 4 hours (as for Wednesday)
Friday " " 4 hours (as for Wednesday)
Saturday " " 4 hours (as for Wednesday).
- 'If this formula produces anomalies that has to be accepted as a consequence of the regulations. I consider that the above consequences follow inevitably once the worker has been found to be covered under Section 3 (2) of the regulations.'
The Rights Commissioner decided that the complaint was well-founded and required the Company to make the appropriate payment based on the above formula.
The Company appealed the Rights Commissioner's decision to the Labour Court, on the 10th of May, 1999. The Court heard the appeal on the 2nd of July 1999.
DETERMINATION:
This case turns on whether Regulation 5 (1) (a) of the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997, is applicable in the case of the claimant. This Regulation provides as follows:
"5. (1) If the employee concerned works or is normally required to work during any part of the day which is a public holiday, then -
(a) in case the employee's pay is calculated wholly by reference to any matters referred to in Regulation 3 (2) of these Regulations, the relevant rate in respect of that public holiday shall be the sum that is equal to the sum (including any regular bonus or allowance that does not vary in relation to the work done by the employee but excluding pay for overtime) paid to the employee in respect of the normal daily hours last worked by him or her before that public holiday,......".
The employer accepts that the claimant's pay is calculated wholly by reference to matters referred to in Regulation 3 (2) of the Regulations. They contend, however, that the claimant does not work normal daily hours and for this reason Regulation 5 (1) (a) could not be applied in her case.
The Court does not accept that this submission is correct.
It is agreed between the parties that the claimant regularly worked 4 hours on Wednesdays, 7 hours on Saturdays, and 8 hours on Sundays. As a matter of plain language those hours constitute her "normal daily hours" for the purpose of applying Regulation 5 (1) (a). On that basis the Court accepts that the findings of the Rights Commissioner are correct.
The decision of the Rights Commissioner is affirmed and the employer's appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
29th July, 1999.______________________
MK/BCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Keegan, Court Secretary.