FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : SANDGATE LTD (REPRESENTED BY L.K SHEILS SOLICITORS) - AND - MR DOMINIC BROPHY (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Flood Employer Member: Mr Keogh Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's decision WT5277/01/TB.
BACKGROUND:
2. The appeal concerns a worker who was employed by the Company as a senior barperson from December, 2000, until October, 2001. It relates to a claim by the worker that he is entitled to Sunday premium for Sunday work under the terms of the Organisation of Working Time Act, 1997. The Company failed to reply to letters from the Union and the matter was referred to a Rights Commissioner for investigation. On the 28th of September, the Rights Commissioner issued his findings and decision as follows:-
"The respondent was in breach of the Terms of Employment Act. He should remedy this situation and I award the claimant £500 (euro 635) in compensation.
The respondent is in breach of theOrganisation of Working Time Act in not paying a Sunday supplement. He should remedy the situation and I award the claimant £250 (euro 318).
I find no evidence that the respondent is in breach of thePayment of Wages Act. this complaint fails."
On the 10th of October, 2001, the Company appealed the Rights Commissioner's decision to the Labour Court. The Court heard the appeal on the 12th of December, 2001.
COMPANY'S ARGUMENTS:
3. 1. The rate of pay of £7.50 (euro 9.52) per hour was a generous rate of pay in the industry and is well in excess of the minimum wage of £4.70 (euro 5.97) per hour.
2. Any deviation from the agreed hourly rate could jeopardise the Company's ability to compete in a highly competitive market and, therefore, endanger jobs.
3. The worker did not, at any time, express his concern to the employer in relation to Sunday work. If he had he would not have been rostered for Sunday work
and alternative arrangements would have been made.
4. The Company is not a member of the Licensed Vintners' Association and the Licensed Trade Agreement does not apply to night clubs.
UNION'S ARGUMENTS:
4. 1. The fact that the worker was paid £7.50 (euro 9.52) per hour, for every hour worked including Sundays, clearly states that the worker was not compensated by
his employer for being required to work.
2. The worker was rostered for Sunday work, he did not volunteer for this work.
3. The Company was required to pay a supplementary payment and they failed to honour their obligation in this regard.
4. The worker had 17 years experience in the trade.
DETERMINATION:
The issue before the Court was in respect of the non-payment of a Sunday supplement to the claimant from December, 2000, to October, 2001.
The Rights Commissioner, in his recommendation, awarded the claimant £250 (euro 318) with the stipulation that the employer should remedy the situation. The claimant, in his evidence to the Court, indicated that as he had left the employment, the question of remedy did not apply.
The Court, having considered all the evidence presented by the parties amends the figure of compensation from £250 (euro 318) to £1200 (euro 1524) in final settlement of this claim.
The Court so determines.
Signed on behalf of the Labour Court
Finbarr Flood
6th February, 2002______________________
HMcD/BRChairman
NOTE
Enquiries concerning this Determination should be addressed to Helena McDermott, Court Secretary.