FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : DUESBURY LIMITED TRADING AS OLD GROUND HOTEL - AND - MARY FROST (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal against a Rights Commissioner's Decision r-056060-wt-07
BACKGROUND:
2. The Employee has been employed at the Old Ground Hotel as a Housekeeper / Accommodation Assistant for the past 32 years. Initally she worked on a full-time basis but in 2006 she moved to a 4-days per week roster which includes every second Sunday. The Worker only became aware in 2007 that she was entitled to a Sunday premium rate and claimed that she had already suffered a considerable loss in income before making her complaint before the Rights Commissioner in March 2009.
The Employer appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 8th July, 2009. The Court heard the appeal on the 3rd March, 2010, the earliest date suitable to the parties.
DETERMINATION:
This is an appeal by the Employer, Duesbury Limited, against the Decision of a Rights Commissioner in a claim brought by SIPTU on behalf of Ms Mary Frost under the Organisation of Working Time Act 1997(the Act). The subject-matter of the complaint concerns consideration for Sunday working in accordance with Section 14 of the Act.
The parties are referred to herein as they were at first instance. Hence Ms Frost is referred to as the Claimant and the Employer, Duesbury Limited, is referred to as the Respondent.
Facts.
The fact as admitted or as found by the Court are as follows: -
- The Respondent is the owner and operator of the Old Ground Hotel in Ennis, Co Clare. The property was acquired by the Respondent from its previous owner in 1996.
The Claimant is employed by the Respondent in her capacity as an Accommodation Assistant. She has worked in the Hotel in that capacity for upwards of thirty years and was originally employed by the former owners of the Hotel. At the times material to this claim she was paid an hourly rate of €9.63.
While the Claimant originally worked in a full-time capacity, in or about 2006 she altered her attendance pattern, by agreement with the Respondent, to that of a four-day week. As part of her normal roster the Claimant works every second Sunday.
In August 2007 the Claimant complained to a Rights Commissioner that she was not provided with any additional consideration in respect to working on Sundays in contravention of S.14 of the Act. In reliance on the Hotels Joint Labour Committee Employment Regulation Order (S.I. No 4 of 2007), SIPTU contended that the appropriate consideration for Sunday working was the payment of a premium of double time.
The Rights Commissioner held that the complaint was well-founded. He awarded the Claimant compensation in the amount of €2,000. The award was expressly in relation to arrears of Sunday premium in the six months preceding the presentation of the claim. The Respondent appealed to the Court.
The Respondent
Ms Mary Gleeson, who is the Manager of the Respondent’s Hotel, gave evidence. She told the Court that she commenced employment with the Respondent in 1998. She said that she always understood that the Claimant’s rate of pay was inclusive of a 10% premium in respect of Sunday working.
The Respondent submitted that the Claimant’s basic rate was significantly in excess of that provided by the ERO upon which she relied and that this more than compensated for the requirement to work on every second Sunday. In its submission to the Court the Respondent pointed out that the Claimant’s fortnightly rate was €601.22, whereas if the strict terms of the ERO were applied (including the hourly rate of €8.36 which it then prescribed and double time for Sunday) her fortnightly rate would be €586.86.
The Claimant
The Claimant told the Court in evidence that she became employed by the Respondent in 1996 when it took over ownership of the Hotel. She said that while employed by the previous owner she was paid double time in respect of working on Sunday. However this was discontinued when the Respondent took over the Hotel. It was the Claimant’s evidence that the obligation to work on Sunday was not taken into account in her personal rate of pay. She said that she had raised the matter with her employer in 2006 and had been told that her rate of pay was all that she was entitled to.
It was submitted on the Claimant’s behalf that the entitlement to double time in respect of Sunday working prescribed in the ERO should be applied to her actual contract rate.
Conclusions of the Court
Section 14 of the Act provides as follows: -
- 14.—(1) 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 account of in the determination of his or her pay) shall be compensated by his or her Employer for being required so to work by the following means, namely—
- ( 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 or more of the means referred to in the preceding paragraphs.
(3) For the purposes of proceedings under Part IV before a rights commissioner or the Labour Court in relation to a complaint that this section has not been complied with in relation to an Employee to whom this subsection applies ("the first-mentioned Employee"), the value or the minimum value of the compensation that a collective agreement for the time being specifies shall be provided to a comparable Employee in respect of his or her being required to work on a Sunday shall be regarded as the value of compensation to be provided under this section to the first-mentioned Employee that is reasonable having regard to all the circumstances:- Provided that if each of 2 or more collective agreements for the time being specifies the value or the minimum value of the compensation to be provided to a comparable Employee to whom the agreement relates in respect of his or her being required to work on a Sunday and the said values or minimum values are not the same whichever of the said values or minimum values is the less shall be regarded, for the purposes aforesaid, as the value of compensation to be provided under this section to the first-mentioned Employee that is reasonable having regard to all the circumstances.
(5) In Subsection (3) "comparable Employee" means an Employee who is employed to do, under similar circumstances, identical or similar work in the industry or sector of employment concerned to that which the first-mentioned Employee in Subsection (3) is employed to do.
(6) References in this section to a value or minimum value of compensation that is specified by a collective agreement shall be construed as including references to a value or minimum value of compensation that may be determined in accordance with a formula or procedures specified by the agreement (being a formula or procedures which, in the case of proceedings referred to in Subsection (3) before a Rights Commissioner or the Labour Court, can be readily applied or followed by the Rights Commissioner or the Labour Court for the purpose of the proceedings). - ( a ) by the payment to the Employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
In the normal course it is for the person who asserts to prove that which they assert (seeJoseph Constanine Steamship Line Ltd. v Imperial Smelting Corp LtdAC 154).Hence, it is for the Respondent to show that at the time the Claimant’s rate of pay was established, a specific element of it was intended to be in consideration of her obligation to work on Sundays. There was a direct conflict in the evidence tendered on behalf of the Respondent and that of the Claimant on this question. It is clear that the Claimant’s current pay structure was established in 1996 when the ownership of the Hotel changed. If her rate included an element to compensate for Sunday working it would have been incorporated at that time. The Claimant gave evidence to the effect that no such element was incorporated at that time or since. Ms Gleeson gave evidence of her belief that the rate included consideration for Sunday working. However, this witness was not employed by the Respondent when the Claimant’s rate was fixed in 1996 and had no involvement in fixing that rate.
The Court accepts that Ms Gleeson gave honest evidence of her bona fide belief on how the Claimant’s pay was structured. However, the fact that she had no involvement in setting the Claimant’s rate of pay (and the fact that she was not employed by the Respondent when that rate was set) must significantly diminish the probative value of her testimony on the crucial question of whether an element in consideration of Sunday working was included in that rate. Furthermore, this testimony was unsupported by any documentary records or other corroborative evidence of any kind. In these circumstances the Court could not accept that evidence as going far enough to rebut the direct evidence of the Claimant to the effect that such an element was never incorporated in her rate of pay. Accordingly the Court must prefer the evidence of the Claimant and hold that her rate of pay does not take account of her contractual obligation to work on Sundays.
In determining a reasonable level of compensation for working on Sundays the Court is required by S.14 of the Act to have regard to the terms of any relevant collective agreement. The ERO is not a collective agreement within the statutory meaning ascribed to that term by the Act. Nor has any relevant collective agreement has been opened to the Court. However, the ERO is a legally binding instrument by which both parties to this dispute are encompassed.
Section 44 of the Industrial Relations Act 1946 provides for the adaptation of individual contracts of employment consequent upon Employment Regulation Orders. It provides : -
- 44.—(1) The Employer of a Worker to whom an employment regulation order applies, shall—
- ( a ) in case the order fixes remuneration, pay to such Worker remuneration not less than the statutory minimum remuneration,
( b ) in case the order fixes conditions of employment, grant to such Worker conditions of employment not less favourable than the statutory conditions of employment.
(3) If a contract between a Worker (being a Worker to whom an employment regulation order, which fixes conditions of employment, applies) and his Employer provides for conditions of employment (in this subsection referred to as the contract conditions) less favourable than the statutory conditions of employment, the contract shall have effect as if the statutory conditions of employment were substituted for the contract conditions.
- ( a ) in case the order fixes remuneration, pay to such Worker remuneration not less than the statutory minimum remuneration,
In this case the Claimant’s contractual rate is in excess of the ERO rate and remains unaltered by the ERO. As the Court has already held, her contract makes no provision for compensation for having to work on Sundays. Consequently, by operation of S.44 of the Act of 1946, the ERO provision relating to Sunday working is incorporated in the Claimant’s contract of employment.
At the time material to this claim the ERO (S.I. No 4 of 2007), provided that a requirement to work on Sundays be compensated for by payment of a premium of double time ‘at the appropriate rate’ The appropriate rate, in the case of the Claimant, is her contract rate. It follows that at the time to which this claim relates the Claimant was entitled to double time calculated by reference to her contract rate in respect of each Sunday on which she worked.
Determination
For all of the reasons set out above, the Court is satisfied that the Decision of the Rights Commissioner is correct. Accordingly the appeal herein is disallowed and the Decision of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
24th March, 2010______________________
JFChairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.