FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : LUTTRELLSTOWN CASTLE LTD. (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - TOMASINA KENNEDY (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Flood Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Decision WT5039/01/GF.
BACKGROUND:
2. The worker is employed as a kitchen porter and works approximately forty five hours per week. She is contracted to work Sundays. The Union claims that the worker approached her employer in relation to a Sunday premium but this was rejected by management. The Union states that Section 14 of the Organisation of Working Time Act, 1997 provides employees who are required to work on Sunday with a statutory entitlement to specific compensation in respect of that requirement.
Management's contention is that the claim under the Organisation of Working Time Act, 1997 does not have any basis or validity. It claims that the Company operates a 20% premium in addition to the normal daily rate of pay for staff who are required to work Sundays. The Company states that the claimant works under an annulaised hour contract. It claims that by virtue of her fixed annual salary and the annualised hour arrangement, that a Sunday premium is factored into her overall remuneration.
The dispute was referred to a Rights Commissioner for investigation. The following is the Rights Commissioner's Recommendation:-
"I have given the submissions careful consideration and I must come to the conclusion that the complaint is not well founded and the company is not in breach of the Act."
The Union appealed the Recommendation to the Labour Court on the 24th October 2001, under Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 11th November 2002.
DETERMINATION:
Section 14(1) of the Organisation of Working Time Act, 1997 states that:
"An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken into account of in the determination of his or her pay) shall be compensated by his or her employer for being required to work by the following means,
(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances
(b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or
(c) by granting the employee such paid time off as is reasonable having regard to all the circumstances
(d) by a combination of two or more of the means referred to in the preceding paragraphs.
The Court considered carefully the written and oral submissions made by the parties and the correspondence subsequently supplied by the employer. The Court finds that the employer has failed to substantiate its claim that the claimant's annualised hour salary contains a Sunday premium or that this was factored into her original salary calculated in November 1998.
The Court is satisfied that there is a case to be answered and recommends that the parties meet to agree financial settlement. If they fail to reach agreement the Court will on request make a definitive Determination on the issue.
Signed on behalf of the Labour Court
Finbarr Flood
19th December, 2002______________________
LW/BRChairman
NOTE
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.