DWT12167

• 
  This case comes before the Court by way of an appeal under Section 28(1) of the Organisation of Working Time Act, 1997 by the Jump Juice Bars Ltd (“the Respondent” or “the Employer”) against a decision the Rights Commissioner made under Section 27(2) of the Act. The Rights Commissioner decided that a complaint made by Ms Monika Konieczna (“the Complainant” or “the Worker”) that the Respondent contravened the provisions of Section 14 of the Act was well founded and awarded the Complainant compensation of €600 for the contraventions that had occurred. The Respondent Company appealed against that decision to this Court.

  The Case came on for hearing on Friday 31^stAugust 2012.

  Background

  The Respondent operates a number of Juice Bars at various locations in the State. The Respondent employed the Complainant as a Sales Assistant in a number of those outlets in Cork City. She commenced working for the Respondent in February 2007. Initially she was employed on a 40-hour week basis. She worked on Saturday and on alternate Sundays. After a number of years her working week was reduced from 40 to 34 hours per week. She initially co-operated with the changed working week. However a short period of time she requested that she be returned to full time hours. The Respondent told her that it could only accommodate such a change if she was prepared to work on Sunday each week. She found this proposition unacceptable. Her employment terminated on 10^thSeptember 2010.

  The Complainant made a complaint to the Rights Commissioner to the effect that Respondent had contravened Section 12 of the Act by not providing her with access to statutory breaks from work. In response to the complaint the Respondent, at the hearing on the 11^thNovember 2010 submitted records to the Rights Commissioner that demonstrated that it complied with the provisions of Section 12 of the Act. On the basis of those records the Complainant submitted a further complaint that the Respondent had contravened Section 14 of the Act by failing to pay her an adequate premium in respect of Sunday work. On November 22^nd2010 the Respondent wrote to the Rights Commissioner in response to the Section 14 complaint.

  The Rights Commissioner conducted a further hearing into the complaint on the on the Friday 25^thMarch 2012. The Respondent did not attend the reconvened hearing.

  The Rights Commissioner found, on the uncontested evidence of the Complainant, that the Respondent had contravened Section 14 of the Act and awarded the Complainant compensation of €600.

  Preliminary Issue

  The Respondent submits that the Complainant based her complaint that it contravened Section 14 of the Act on the information it provided to the Rights Commissioner in response to the Section 12 complaint. The Respondent submits that the records supplied in one context cannot be used to ground a Complaint under another section of the Act. It submits that the Rights Commissioner was wrong to base his decision on those records.

  The Respondent submits that the records revealed a breach of Section 14 of the Act; they related to her employment with the respondent and were maintained in order to comply with the provisions of Section 25 of the Act and accordingly she was entitled to rely on them. She submits the Rights Commissioner was correct in basing his decision in part on those records.

  Findings of the Court

  Section 27 of the Act in relevant part provides

  • 
    
    (2) An employee or any trade union of which the employee is a member, with the consent of the employee, may present a complaint to a rights commissioner that the employee's employer has contravened a relevant provision in relation to the employee and, if the employee or such a trade union does so, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, shall give a decision in writing in relation to it and shall communicate the decision to the parties.

    (4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

    (5) Notwithstanding subsection (4) , a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.

    (6) A complaint shall be presented by giving notice thereof in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.

    (7) A copy of a notice under subsection (6) shall be given to the other party concerned by the rights commissioner concerned.

    (8) Proceedings under this section before a rights commissioner shall be conducted otherwise than in public.

    (9) A rights commissioner shall furnish the Labour Court with a copy of each decision given by the commissioner under subsection (2) .

    (10) The Minister may by regulations provide for any matters relating to proceedings under this section that the Minister considers appropriate.

Section 14 (1) provides

• (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.

• • Section 14 (2) and (3) provide: -
    • Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.

      (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.
  In this case the Complainant relied on the provisions of Employment Regulation Order that no longer has legal effect and cannot be considered a “collective agreement” for the purpose of this section.

  Section 14(4) provides that it is a matter for the Complainant to bring the details of any relevant collective agreement to the notice of the Court unless it has otherwise come to the Court’s notice.

• (4) Unless the fact of such a value being so specified has come to the notice of the rights commissioner or the Labour Court, as the case may be, it shall be for the person who alleges in proceedings referred to in subsection (3) that a value of compensation of the kind referred to in that subsection is specified by a collective agreement mentioned in that subsection to show that, in fact, such a value is so specified.

  The Complainant did not bring any such collective agreement to the notice of the Court. Neither has such a collective agreement otherwise come to the notice of the Court. Accordingly the Court must determine the matter in accordance with the provisions of Section 14 1(b) of the Act. The Court must essentially decide if the premium of 10% per hour over and above the level of the national minimum wage was paid as a Sunday premium and if so whether it amounts to a reasonable premium in all the circumstances of this case.

  In assessing this matter the Court notes that no evidence has been presented to it to the effect that the 10% premium was paid to the Complainant in respect of the work she performed on Sunday. No evidence was presented to the Court to show that the Complainant had been so informed in the course of her employment with the Respondent. Moreover no evidence was presented to the Court to show that the level of the premium paid varied with the frequency with which the Complainant was required to work on Sunday.

  In the absence of such evidence the Court takes the view that the 10% premium over and above the minimum wage paid to the Complainant was unrelated to her requirement to work on Sunday. Accordingly the Court concludes that the Complainant was not paid any premium for the work she performed on Sunday.

  In these circumstances the Court must conclude that the complaint under Section 14 of the Act is well founded.