DWT1515

While the Respondent did not cross appeal the effect of the Claimant’s appeal is to reopen all aspects of the case which the Court heardde novo.

Background
The case concerns the applicability of section 13 (5) of the Act to the Claimant. That subsection provides: -

• Save as may be otherwise provided in the employee's contract of employment—

  (a) the rest period granted to an employee under subsection (2), or

  (b) one of the rest periods granted to an employee under subsection (3),

  shall be a Sunday or, if the rest period is of more than 24 hours duration, shall include a Sunday.

The Claimant was required to work on Sundays and it appears that he did so throughout the period of his employment with the Respondent. It further appears that he also worked on Sundays while in his former employment. He now contends that being so rostered constitutes a contravention of s.13(5) of the Act.

The Claimant has never been furnished with a contract of employment in writing, or if he has, no such written contract has been produced. It further appears that the Claimant has neither sought nor has he been furnished with a statement of the main particulars of his contract of employment pursuant to the Terms of Employment (Information) Act 1994. Nevertheless, it is clear that he is an employee of the Respondent but the terms of contract under which he is employed were either expressed verbally or they were implied. In that regard it is worth noting that s.2(1) of the Act defines a contract of employment as: -

• “contract of employment” means—

  (a) a contract of service or apprenticeship, and

  • (b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of theEmployment Agency Act, 1971, and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract),
  whether the contract is express or implied and if express, whether it is oral or in writing;

The Respondent contends that it is an established practice in the security industry for employees to work on Sunday and that the obligation to do is inherent in the job of a security guard. It was pointed out that the Claimant did in fact work on Sundays both in his present employment and in the employment from which he transferred. It is the Respondent’s case that even if there was no express term requiring him to do so, there is an implied terms in his contract of employment to that effect.

A term can be implied in any contract, including a contract of employment, by application of the so called officious bystander test enunciated inShirlaw v Southern Foundaries Ltd[1939] 2 K.B. 206. Here the test was set out in the following terms: -

• “Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying that if, while the parties were making the bargain, an officious bystander were to suggest some express provision for it in the agreement they would testily suppress him with a comment ‘Oh of course’.”

• “…so notorious, well-known and acquiesced in that in the absence of agreement in writing it is to be taken as one of the terms of the contract between the parties…it is necessary in order to establish a custom of the kind claimed that it be shown that it was so generally known that anyone concerned should have known of it or easily become aware of it.”

An Implied Term
There is no doubt that the Claimant worked on Sundays over many years. That is clear from the many documents put in evidence, including payslip issued to him by his former employer. He also acknowledged that to be the position in the course of a hearing before a Rights Commissioner on 28^thMay 2014 which resulted in Rights Commissioner decision r-140643-wt-13/RG. In that case the Claimant successfully sought compensation for not having received a premium for working on Sundays under s.14 of the Act.

The Claimant’s terms and conditions of employment were originally determined by reference to the Employment Regulation Order for the Security Industry (S.I. 500 of 2006). That Order made provision for the payment of a premium rate to employees who work on Sunday. It is axiomatic that such a provision would only have been made if Sunday working was a feature of employment to in the Security Industry.

In considering this question the Court, as an expert tribunal, is also entitled to bring to bear its own expert view in cases that come before it (seeBenedict McGowan and ors v The Labour Court, Ireland and the Attorney General and Ors[2010] 21 E.L.R. 277). It is well known to the members of this Court, from the experience and knowledge of its members, that security guards normally work on a five over seven day cycle and that a liability to work on a Sunday is a common feature of such employment.

Having regard to all of these considerations, the Court has no doubt that if the Claimant’s contract of employment did not contain an express term allowing the Respondent to roster him to work on a Sunday it most certainly contained an implied term to that effect.

Terms of Employment (Information) Act 1994
Finally, the solicitor for the Claimant submitted that the Terms of Employment (Information) Act 1994 and The Terms of Employment (Additional Information) Order 1998 (SI 49 of 1998) obliged the Respondent to inform the Complainant in writing,inter alia, of the terms of s.13 of the Act. It was submitted that the absence of such statement in writing negates the possibility of an implied term in his contract of employment as to Sunday working. That submission is not sustainable in law or in logic. If, as submitted, the Respondent failed to provide the Claimant with a statement of the type required by statute that may give rise to liability under the Act of 1994. But such an omission could not affect in any way the actual terms of the contract under which he was employed nor could it reduce any of those terms to a legal nullity.

Outcome
For all of the reasons set out herein the Court is satisfied that the Claimant was contractually obliged to work on Sundays. In these circumstances the decision of the Rights Commissioner is set aside and substituted with the terms of this Determination.

Signed on behalf of the Labour Court



Kevin Duffy
CR______________________
16th February, 2015.Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.