DWT1624

While other matters were before the Rights Commissioner the only point pursued in the appeal relates to the findings of the Rights Commissioner in relation to the Claimant’s obligation to work on Sundays and whether her rate of pay took that into account.

The Rights Commissioner found that the Appellant’s contract includes a premium for Sunday working and decided that her claim was not well founded.

Position of the Parties

The Appellant

The Appellant contended that while her contract of employment stated that her rate of pay contained a premium for working on Sundays no discernible premium was actually paid and that if such premium were paid it was not reasonable having regard to all the circumstances. She stated that her rate of pay varied and that she had not received detail of the how her requirement to work on Sundays was taken into account in setting her rate of pay. She accepted the Respondents assertion that the cognisable period for her claim was 27^thMay 2013 to 26^thNovember 2013. She also accepted that she had worked 93.5 hours on Sundays in that period.

The Respondent

The Respondent submitted that the rate of pay of the Appellant had been set in a manner to take account of her requirement to work on a Sunday. The Respondent stated that at all material times the Appellant had been in receipt of a rate of pay of €375.00 in respect of a 39 hour week excluding allowance for the provision of food. The Respondent contended that this rate of pay was reflective of the requirement to work on Sundays and that this requirement was taken into account in the determination of the Appellant’s pay. The Respondent contended on that basis that the Court does not have jurisdiction to test or evaluate the adequacy of the Appellant’s overall pay.

The Law

The Act at Section 14(1) provides:-

• 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.

Discussion

The rate of pay of the Appellant was set by unilateral decision of the Respondent at the date of recruitment. Neither party was in a position to put in evidence to the Court a signed and clear copy of the Appellant’s contract of employment.

Section 14(1) of the Act provides, in effect, that an employee who is required to work on a Sunday is entitled to an additional benefit in respect of that requirement where “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”. What is intended by this provision is that a worker who is obliged to work on a Sunday is entitled to compensation for that obligation in the form of a benefit which he or she would not receive it they were not so obligated. As is clear from the opening words of s.14(1), in brackets, that compensation can take the form of an enhanced rate of pay over and above that which he or she would have received if the obligation to work on Sunday was not present. Not only must an additional benefit be provided but that benefit must be reasonable in all the circumstances. That entitlement is one of substance which a Rights Commissioner, and this Court on appeal, is obliged to vindicate.

This Court has held (Viking Security Ltd – and – Tomas Valent – DWT 1489) as follows:-

• In the Court’s view it is insufficient for the employer to simply say (as the Respondent does in this case) that because the rate exceeds the national minimum wage it compensates for Sunday working. If such a contention were to be accepted the effectiveness of the statutory provision would be seriously undermined in the case of all workers whose pay exceeds the statutory minimum.

  In practice the Court can only be satisfied that an employee has obtained his or her entitlement under s.14(1) of the Act where the element of compensation for the obligation to work on Sundays is clearly discernable from the contract of employment or from the circumstances surrounding its conclusion. Where an hourly rate is intended to reflect a requirement for Sunday working that should be identified and clearly and unequivocally specified at the time the contract of employment is concluded either in the contract itself or in the course of negotiations.

The Appellant has set out to the Court a calculation of economic loss in the period based on the assumption that the Appellant received no pay for 93.5 hours she worked on Sundays in the cognisable period of her Appeal. No assertion has been made to the Court that the Appellant received no pay for Sunday working in the period. Rather the Appellant claimed that no premium had been paid to her which was reasonable in all of the circumstances.

It is very difficult for the Court to discern clearly the rate of pay of the Appellant. It is common case that the rate of pay varies and the Respondent asserts for example that the hourly rate varied by reference to the length of certain shifts. The Respondent stated to the Court that the Appellant’s contractual rate of pay in the cognisable period was €375 in respect of a thirty nine hour week which equates to €9.62 per hour. The Court, on the material presented, could identify no consistent pattern of payment of this hourly rate to the Appellant.

The Court finds that a mere assertion that the Appellant’s obligation to work on Sundays was taken into account in determining her rate of pay cannot be taken, on its own, as evidence of compliance with Section 14(1) of the Act.

The Court finds that in the absence of clear evidence as to how such an assertion was given effect in the pay arrangements applied to the Appellant it has jurisdiction under the Act to hear this matter.

The Court finds that the methodology of calculating pay operated by the respondent is such that the Respondent’s compliance with the Act is not clearly discernible.

Determination

The Court determines that the Respondent has not demonstrated compliance with the Act during the cognisable period of this Appeal and measures the amount of compensation that is reasonable in all the circumstances at €300. The Appeal succeeds and the decision of the Rights Commissioner is set aside.

Signed on behalf of the Labour Court



Kevin Foley
30th March 2016______________________
SCDeputy Chairman



NOTE

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