DWT1530

The Complainant alleged that during the course of his employment, his employer, Wicklow Recreational Services limited, (the Respondent), infringed his rights under Section 14, 21 and 26 of the Organisation of Working Time Act 1998 (the Act).

The Rights Commissioner investigated the complaints and decided as follows:

“No case was presented. The case falls for want of prosecution”

The case came on for hearing before the Court on the 29^thJanuary 2015.

Background

The Complainant worked for the Respondent as a Part Time Leisure Attendant from December 2008 until January 2014. The Respondent operates a leisure centre and employed the Complainant to provide swimming lessons as required and to undertake other duties around the leisure centre. He was paid varying rates of pay depending on the work to which he was assigned.

Section 14 Complaint

Section 14 of the Act in relevant part states

• (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 paidtimeoff 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.

  (2) 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.

The Respondent argues that it contested the Complainant’s entitlement to Sunday premium in another set of proceedings under the Act that overlap with the case before the Court. The Court issued a Determination in that case on 29 December 2014. It submits that Court found for the Complainant in those proceedings and set the Sunday premium at 25% of normal pay. The Respondent argues that it paid the Complainant a 25% premium in respect of each of the Sundays that come within the scope of this claim.

The Complainant acknowledges the payments were made but argues that the Respondent nevertheless infringed section 14 of the Act in respect of each of the weeks that come within the scope of this complaint. He seeks compensation for the infringement of his entitlement under the Act.

Findings of the Court

The Court finds that the Respondent withheld payment of a Sunday allowance to the Complainant in this case while it awaited the outcome of an earlier complaint he made under this section. The Court, in deciding that case, DWT14123 refers, held as follows

• The Court finds that the Respondent made out a fair case before the Rights Commissioner in respect of the complaint under section 14 of the Act. That is the Respondent’s entitlement. The matter was decided against the Respondent. However the Court is not minded to penalise a Respondent for availing of its statutory right to enter a bona fide defence against a complaint under the Act. In this case therefore the Court finds that the Rights Commissioner’s decision is just and equitable in all the circumstances and determines accordingly.

The Court considers the Respondent’s approach reasonable in all the circumstances of this case. The Court makes no further award of compensation for the infringement of the Complainant’s entitlement under the Act.

Determination

The Court finds the Complaint well founded and notes that the Respondent has fully compensated him for the underpayments of Sunday premium on the relevant dates. The Court considers the Respondent’s approach in this matter was reasonable and proportionate and makes no further award of compensation in all the circumstances of the case.

The Court so determines.

Section 21 Complaint

Section 21 of the Act states

• 
  (1) Subject to the provisions of this section , an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—
  • • (a) a paid day off on that day,

      (b) a paid day off within a month of that day,

      (c) an additional day of annual leave,

      (d) an additional day's pay:

    
    
    Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection , be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

Findings of the Court

The Court finds that the evidence before it discloses that the Respondent paid the Complainant a day’s pay in respect of each of the Public Holidays that fell in May and June 2014. Payment in respect of the May Public Holiday was paid one week late. Payment in respect of the June Public Holiday was paid on time.

In the circumstances the Court finds that the Respondent met its statutory obligations under section 21 of the Act to the Respondent.

Determination

The Complaint is not well founded.

The Court so determines.

Section 26 Complaint

Section 26 of the Act sates

• 
  (1) An employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful under this Act [or the Activities of Doctors in Training Regulations ].

  (2) If a penalisation of an employee, in contravention of subsection (1) , constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2007, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts .

The Complainant argues that he was penalised because he made complaints under Section 14 and 21 against the Respondent to the Rights Commissioner. In support of the complaint of penalisation he states that, after he submitted complaints to the Rights Commissioner in October 2013 he was

• 
  •Assigned Saturday swimming lessons as a substitute teacher. He was not scheduled to work those days as a teacher which would have attracted a higher rate of pay.

  •He was assigned to teach ad hoc classes rather than eight lesson courses.

  •Prior to submitting the complaints he was assigned between 6 – 9 hours work on Saturday and Sunday each weekend. After he filed the complaints he was assigned 3 -4 hours per day spread over five days. This had the effect of compromising his entitlement to Social Welfare payments.

  •He was assigned primarily to cleaning duties after he submitted the complaints. He had been assigned to other more attractive duties before he made the complaints.

  •Issued with a warning by his employer for allowing a child into the store room in the leisure centre. He contends that when other members of staff did likewise they were not reprimanded in any way. He argues that the action was taken against him in this case because he commenced proceedings under the Act.

The Respondent argues that it assigned the Complainant to the available work within the centre. It argued that he had been accommodated with varied working hours over a period of time. It further argued that he was assigned the available work and that he suffered no loss in hours during this time. Finally it argued that store room contains dangerous chemicals and is off limits to the public in general and children in particular. It argued that it dealt with the matter on its merits and was not connected with the complaints under the Act made by the Complainant.

Findings of the Court

The Complainant listed a number of alleged acts of penalisation suffered by him. However the written submissions of the Complainant contain no evidence of the hours he worked, the days on which he worked, the classes he was assigned to teach or the distribution of his work over the weeks prior to June 2014 the date on which he made a complaint to the Rights Commissioner. In addition the Complainant presented no evidence that management allowed or ignored other members of staff who permitted children access to the store room. What was alleged by the Complainant in this regard amounted to no more than mere assertion. It is well settled law that mere assertion does not amount to evidence before the Court.

Accordingly the Complainant presented no evidence in support of the complaint. Instead he merely outlined his treatment at the hands of his employer after he lodged the complaints with the Rights Commissioner. The Court has no evidence therefore upon which it can determine whether that treatment was substantively different or detrimental to the Complainant. Nor can it determine whether such detriment, if any, flowed from the complaints made to the Rights Commissioner.

In the absence of evidence supporting a prima facie allegation of penalisation the Court determines that the Complaint is not made out.

Determination

The Complaint is not well founded. The appeal is not allowed.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
15th April 2015______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.