FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : ARCOURT LTD T/A SHELDON PARK HOTEL - AND - DARRAGH BRANGAN DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal Of Rights Commissioner's Decision R-045129-Wt-06/Tb
BACKGROUND:
2. The appeal before the Court is a joint appeal and concerns the Organisation of Working Time Act, 1997. The Worker claims he was not paid a Sunday premium and worked in excess of an average of 48 hours per week without compensation. The Company's position is that the premium was built into the worker's annual salary and that his working hours and responsibilities were comparable to similar posts in the industry. Regarding the Sunday premium, the Rights Commissioner found in favour of the Worker. The issue of the excess hours was not dealt with.
The parties appealed the Rights Commissioner's Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997, the Employee on the 25th April, 2007 and the Employer on the 4th May, 2007. The Labour Court heard the appeal on 6th September, 2007.
UNION'S ARGUMENTS:
3. 1 For the first 21 weeks the Worker was employed in his post, the Terms of Employment were honoured and he did in fact get 3 days off per week six times over this period. However, after this time the Worker never got any time off in lieu or extra payment for hours rostered. Moreover, this extra compensatory time off given during the first 21 weeks was subsequently calculated incorrectly as part of his mandatory days off. During his first year of employment he received 112 days off but was due 133 days off.
2 The worker's last payslip for the year 2005 indicates that he was only paid €244.44 above his basic salary. He worked for the Company for 18 weeks in 2006. His last pay slip for this period shows he was paid €680.57 above basic. The shortfall of mandatory days off for the 70 weeks worked was 21. The extra payment received equates to 9.25 days.
3 The Worker was rostered unfairly and obliged to work excessive hours.
COMPANY'S ARGUMENTS:
4. 1 The Worker joined the Company in December 2004 on an agreed salary that included the provision for a Sunday premium as he was required to work on some weekends. This was clarified and agreed at interview and was accepted by both sides.
2 Hotels in the Greater Dublin area i.e. outside the County Borough of Dublin are governed by the National Minimum wage payment only. A premium is payable for Sunday working but there is no stipulation as to what the premium should be. The premium is agreed during the interview process. Since the Company opened this is the basis by which staff are recruited and the fact that no other complaints have been made indicates that everyone is in full understanding of the make up of their remuneration.
3 The Company are paying a comparable salary to other similar establishments as otherwise it would not be able to recruit or retain staff.
DETERMINATION:
The Worker (the Complainant) instituted proceedings under Section 27(2) of the Organisation of Working Time Act 1997 (the Act) before a Rights Commissioner. The Complainant also claimed that his rights under a number of other employment rights statutes had been infringed. He complained that he did not receive appropriate compensation in accordance with Section 14 of the Act in relation to his Sunday working. Furthermore, he claimed that he regularly worked hours in excess of the average of 48 hours per week as set out in Section 15 of the Act.
The Company (the Respondent) failed to attend before the Rights Commissioner who, on hearing the complaint, held with the complainant. The Rights Commissioner awarded the complainant compensation in the sum of €2000 in respect of the failure to pay a Sunday premium. The Rights Commissioner also held that the Complainant failed in his complaint that his weekly working hours were in excess of the 48 hours limit under the Act. Both the Claimant and the respondent appealed to this Court. (For the avoidance of any doubt, this appeal is concerned only with claims under the Organisation of Working Time Act 1997).
Sunday premium
The Complainant sought payment of a Sunday premium in respect of the requirement for him to work on Sundays in accordance with Section 14(1) of the Organisation of Working Time Act, 1997, which 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 Respondent 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 that employee such paid time off from work as is reasonable having regard to all the circumstances, or
(d) by a combination of two or more of the means referred to in the preceding paragraphs".
The Respondent indicated to the Court that the Complainant worked most Sundays and no specific payment was paid for working on Sundays, however, she submitted that a Sunday premium was factored into his rate of pay.
The Court gave the Respondent an opportunity to address this point and to produce evidence to substantiate its position. The Claimant was also given the opportunity to submit details to support his claim and to respond to any evidence produced by the Respondent on this point. However, the Respondent failed to produce such evidence, therefore, in absence of any evidence to substantiate the assertion that the Claimant’s rate of pay is inclusive of a Sunday premium, the Court finds that the Respondent contravened Section 14 of the Act.
In accordance with Section 14(3), the Court finds that the claimant has an outstanding entitlement to a Sunday premium.
Weekly hours
The Claimant submitted that the Respondent was in breach of Section 15(i) of the Act. This section stipulates that a Respondent shall not permit a Claimant to work, in each period of 7 days, more than of average of 48 hours, calculated over a reference period.
The Court was presented with conflicting information on hours worked during the period of his employment, from 29th December 2004 to 5th May 2006. The Claimant kept attendance records during the period of his employment, which the Respondent disputed, stating that they did not reflect the “ clocked in” hours of work.
He submitted copies of duty rosters for all staff and told the Court that for the initial 21 weeks of his employment the Respondent honoured the terms of the Act by allowing him compensatory rest for hours worked in excess of 90 hours per fortnight. However, he said that this changed after the 21 weeks and he produced his attendance record to demonstrate that he regularly worked in excess of 48 hours per week during the period 16th May 2005 until 5th May 2006. The respondent rebutted this information by producing details obtained from his clock card records.
The Claimant challenged the Respondent’s evidence on the basis that it did not accurately reflect the hours he worked as it omitted to record a number of days worked and his exit times when he did not have an opportunity to clock out.
Having examined the clock cards and compared them with the pay slips submitted by the Respondent, the Court prefers the evidence of the Claimant and is satisfied that he regularly worked between 50 and 55 hours per week during the period mid May to December 2005 and worked an average of 50 hours per week in 2006.
Having evaluated all the available evidence the Court does not accept that the Respondent has proved, on the balance of probabilities, that the Claimant’s evidence should be rejected and that the relevant provisions of the Act were complied with. Accordingly the Court finds that the Respondent contravened Section 15 of the Act in requiring him to work hours in excess of the maximum number prescribed by that section.The Court is further satisfied that the Claimant did not have an 11-hour rest period in each 24-hour period, contrary to Section 11 of the Act.
Determination
The Claimant did not appeal against the quantum of compensation awarded by the Rights Commissioner in respect of Sunday Premium. Nonetheless, the Court is entitled in this de novo hearing to form its own view of the adequacy of the award.
In all the circumstances of this case the Court considers that the compensation awarded by the Rights Commissioner should be increased. The Court determines that the Respondent should pay the Claimant compensation in the amount of €5,000.00 in respect of all of the infractions of the Act, which it has found to have occurred.
An order will be made in the claimant's favour in that amount.
The Worker's appeal is allowed and the Decision of the Rights Commissioner is varied accordingly. The Company's appeal is rejected.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
20th Novemeber 2007______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.