FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : BEANOS RESTAURANT LIMITED - AND - DZERALDAS DANAUSKAS DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's decision WT10367/02/TB.
BACKGROUND:
2. The worker concerned was employed by the Company from June, 2001, until the 16th of May, 2002, as a Junior Chef.
The issue before the Court is a claim for a Sunday premium. The Company states that a Sunday premium is built into the worker's rate of pay.
The claim was referred to a Rights Commissioner for investigation. His decision issued on the 12th of November, 2002, in which he awarded the claimant €300 in respect of Sunday premium. The Company appealed the Rights Commissioner's decision to the Labour Court on the 30th of December, 2002, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Court heard the appeal on the 2nd of October, 2003, the earliest date suitable to the parties.
COMPANY'S ARGUMENTS:
3. 1 The worker concerned never raised an issue regarding a Sunday premium while he was working.
2. A Sunday premium is built into the worker's rate of pay.
WORKER'S ARGUMENTS:
4 1. Sunday work was not mentioned when the claimant commenced employment.
2. The worker concerned should receive a premium for work carried out on a Sunday.
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, or
(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 from work as is reasonable having regard to all the circumstances. or
(d) by a combination of two of two or more of the means referred to in the preceding paragraphs".
The Court has examined the facts and in accordance with Section 14(3) finds that having regard to all the circumstances, the value of a Sunday premium to a comparable employee together with their basic pay is greater than the rate of pay paid to the worker on a weekly basis in this case. Therefore, the Court determines that the extent of the worker's entitlement pursuant to Section 14 of the Organisation of Working Time Act, 1997 is the amount of €396.
The decision of the Rights Commissioner is varied and the appeal is disallowed.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
20th_October, 2003______________________
GB/JBDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Gerardine Buckley, Court Secretary.