FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : IRELAND'S EYE SEAFOODS LTD (REPRESENTED BY MANAGEMENT SUPPORT SERVICES (IRELAND) LTD) - AND - YULIANNA BREKHLICHUK (REPRESENTED BY RICHARD GROGAN & ASSOCIATES SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. An appeal against a Rights Commissioner's Decision no: r-140359-wt-13/EOS.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on the 5thJune 2014 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 23rdJuly 2014. The following is the Determination of the Court.
WORKER'S ARGUMENTS:
3. 1. The Claimant’s contract of employment states “Your rate of pay is €9.50 per hour”.
2. There is no reference in that contract to say that €9.50 per hour includes a Sunday premium.
3. The Claimant worked Monday to Friday at a rate of €9.50 per hour and worked on a Sunday at €9.50 per hour. No premium was paid for working on Sundays.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer operates a retail operation in Dublin Airport with shift patterns spread over a full week. As a Sales Assistant the Claimant was required to work over a full week, Sunday to Saturday.
2. The Claimant was aware that she would be required to work on a Sunday as part of the normal week.
3. Within the retail industry, as it currently operates, persons would be employed on €8.65 per hour. The Claimant’s rate of pay was €9.50 per hour which reasonably incorporated a premium to reflect the nature of the working week.
DETERMINATION:
This is an appeal by Ms Yulianna Brekhlichuk (the Complainant) against a Rights Commissioner’s Decision, no: r-140359-wt-13 in her claim against her former employer, Ireland’s Eye Seafoods Limited t/a Wrights of Howth, under the Organisation of Working Time Act 1997 (the Act). The Complainant submitted a number of claims to the Rights Commissioner however she has appealed one aspect of the Decision and that relates to the question of her entitlement to a Sunday premium in accordance with Section 14 of the Act.
The claim was referred to the Rights Commissioner Service on 29thNovember 2013. It is not disputed that during the cognisable period covered by the claim, the Complainant worked eight Sundays, working eight hours per shift.
Section 14 of the Act provides, in effect, that where the requirement to work on Sunday is not otherwise taken into account in the determination of a worker’s pay, he or she is entitled,inter alia,to the payment of an allowance of such amount as is reasonable in all the circumstances.
The Court is not satisfied that the requirement to work on Sundays was otherwise taken into account in determining the Complainant’s pay nor is it satisfied that she was paid an allowance of such amount as is reasonable in all the circumstances.
In consequence the Court is satisfied that the Respondent contravened Section 14 of the Act in relation to the Complainant.
The Court awards the Claimant compensation of €400.00 being the amount that the Court considers fair and equitable in all the circumstances.
The appeal is allowed and the Rights Commissioner’s Decision is varied accordingly. The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
29th July, 2014.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.