FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : CARRAWAY INVESTMENTS LIMITED TRADING AS ASHBOURNE HOUSE HOTEL - AND - EAMON O' GORMAN DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of a Rights Commissioner's Decision No. R-041909-WT-06/JC.
BACKGROUND:
2. The Worker concerned was employed by the Company from 10th July 2005 to 17th April 2006 as a Chef. He was paid at the rate of €15 per hour.
A claim by the Worker in respect of annual leave entitlement and non-payment of the Sunday supplement was referred to the Rights Commissioner for investigation. The Company failed to attend that hearing or send a representative. The Rights Commissioner’s decision issued on the 8th August, 2006. She upheld the Worker’s complaint and awarded him compensation in the amount of €3,140 to be paid by the Employer.
The Company appealed the Rights Commissioner’s decision to the Labour Court on the 30th August, 2006, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Court heard the appeal on the 17th November, 2006.
COMPANY'S ARGUMENTS:
3. 1. The Worker was paid his full annual leave entitlement as per the a) the pay history from the Hotel's computer records, b) records from the Hotel clock-in machine and c) kitchen rosters from the week in question.
2. The Worker's hourly rate of pay was inclusive of the Sunday Premium and the Hotel Management maintains that this was explained to him when he commenced his full-time employment. The position was also set out in his Contract of Employment.
WORKER'S ARGUMENTS:
4. 1. The Worker maintains that his pay slip indicates that he was short one days' annual leave at the time of his termination of employment.
2. The Worker maintains that the position concerning the inclusion of Sunday Premium in his hourly rate was not made clear to him. He believes he was entitled to an extra payment for working on Sundays.
DETERMINATION:
The Claimant complained to a Rights Commissioner that the Appellant herein had contravened Sections 14 and 19 of the Organisation of Working Time Act 1997 (the Act) in not compensating him for being required to work on Sundays and in failing to provide him with the full amount of annual leave to which he was entitled. The complaint was investigated by a Rights Commissioner pursuant to Section 27 of the Act. The Appellant failed to attend before the Rights Commissioner for reasons which were explained to the Court. On the uncontradicted evidence before her the Rights Commissioner found that the complaints were well-founded. The Appellant appealed to this Court against that decision.
Having considered the submission of the parties and having examined records and other documents which were not available to the Rights Commissioner the Court has concluded as follows:
Sunday Working
The Claimant was originally employed in a part-time capacity by the Appellant and was paid €15.00 per hour. At that time the Claimant had a limited liability for Sunday working. The rate was agreed with the Head Chef. The terms of the contract in respect of this initial period of employment were not reduced to writing. The rate of €15.00 per hour was the standard rate payable to all chefs whether or not they worked on Sundays.
In or about July 2005 the Claimant commenced working full-time for the Appellant. In that capacity he was required to work on every Sunday. He again discussed his conditions of employment with the Head Chef. It was agreed that the Claimant would be paid €600 per week, which equated to €15.00 per hour. There was a sharp difference of recollection between the Head Chef and the Claimant as to what was discussed in respect of Sunday working. The Head Chef recalled having told the Claimant that the rate of €15.00 per hour included compensation for working on Sundays. The Claimant was emphatic that this was never mentioned.
The Appellant contended that the Claimant was provided with a written contract of employment shortly after he commenced his full-time employment. A copy of this document was put in evidence. It states, in the relevant part, that the rate of pay applicable was to be €600 per week and it expressly stated that this includes compensation for working on Sundays. The document is signed on behalf of the Appellant but was not signed by the Claimant. It was the Appellant's evidence that the document was handed to the Claimant but was not signed and returned. The Claimant told the Court that he was not furnished with the document in question and that he had first seen it in connection with this appeal.
Separate proceedings are pending under the Terms of Employment (Information) Act 1994 in which the Claimant is seeking redress for the alleged failure of the Appellant to furnish him with particulars in writing of the terms of his contract of employment. Having regard to the attitude which the Court has taken on this aspect of the case it is unnecessary for it to make any findings on whether or not the Claimant was furnished with the document relied upon by the Appellant and the Court makes no such findings.
Conclusion
Section 14 of the Act provides employees with a statutory right to compensation for being required to work on Sundays. Subsection (1) of that Section makes it clear that the right to compensation can be satisfied where the requirement to work on Sunday is taken into account in determining the employee's rate of pay. This suggests that some element of the employee's pay must be referable to the obligation to work on Sundays.
In this case the Appellant accepted that the rate payable to the Claimant was the same as that paid to all Chefs whether or not they had a liability to work on Sundays. It is axiomatic that as the Claimant, who was required to work on Sundays, was paid the same rate of pay as other members of staff who had no such liability, no element of his pay could have been in consideration of the obligation to work on Sundays. It follows, in logic and as a matter of common sense, that the Claimant's obligation to work on Sundays was not taken into account in determining his rate of pay. Accordingly, the Claimant is entitled to succeed in this aspect of his claim.
Having regard to all the circumstances of this case the Court is satisfied that, for the purposes of Section 14(3) of the Act, the Rights Commissioner was correct in assessing the amount of compensation to which the Claimant is entitled by reference to the provisions of the Hotels Employment Regulation Order. The Court, accordingly, affirms the Rights Commissioner's award of compensation to the Claimant in the amount of €3,000 for the breach of his entitlements under Section 14 of the Act.
Annual Leave
The Court has examined the records with which it was furnished by the Appellant in relation to the granting of annual leave to the Claimant. These records were not before the Rights Commissioner. The Court is satisfied from its perusal of these records that the Claimant received the full amount of annual leave to which he was entitled in respect of his period of employment with the Appellant. If follows that this aspect of his claim is not well founded.
Determination
For the reasons which are set out above the Court determines that the Appellant contravened Section 14 of the Act in relation to the Claimant in not compensating him in accordance with the Act for the requirement to work on Sundays. The award of €3,000 in respect of this infraction is affirmed. The Court is satisfied that the Appellant did provide the Claimant with his full entitlement to annual leave and that the complaint alleging a contravention of Section 19 of the Act is not well-founded. The award of compensation in the amount of €120 in respect of unpaid holiday pay is therefore set aside.
The Decision of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
7th December, 2006______________________
MG.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.
WTC/06/45DETERMINATION NO. DWT0634
SECTION 28(8), ORGANISATION OF WORKING TIME ACT, 1997
PARTIES:
CARRAWAY INVESTMENTS LIMITED TRADING AS
ASHBOURNE HOUSE HOTEL
ASHBOURNE HOUSE HOTEL
-AND –
- EAMON O’GORMAN
SUBJECT:
1. Complaint that a Rights Commissioner’s Decision has not been implemented, No. DWT 0634
BACKGROUND:
2. An application has been made by the employee that Determination NO. DWT0634 does not correctly state the name of the employer, the correct name being Carraway Investments Limited trading as Ashbourne House Hotel.
DETERMINATION:
In exercise of its powers under Section 39(2) of the Organisation of Working time Act, 1997, the Court determines that the name of the employer in Determination No.0634 shall be changed from Ashbourne House Hotel to Carraway Investments Limited trading as Ashbourne House Hotel.
Signed on behalf of the Labour Court
22nd February, 2007_Kevin Duffy_
Chairman