ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001357

Complaint for Resolution:

Date of Adjudication Hearing: 21 July 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On 5 January 2016, the complainant referred a complaint to the Workplace Relations Commission regarding breaches of the Organisation of Working Time Act. The complaint was initially scheduled for adjudication on 21 March 2016 and due to certain circumstances was re-scheduled for hearing on 21July 2016. The complainant attended the adjudication and was accompanied by a family member. Two representatives of the respondent attended.

In accordance with Section 41(4) of the Workplace Relations Act, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

The complainant worked for the respondent as a security guard between 23 May and 20 November 2015. He outlines that, in breach of the Organisation of Working Time Act, he was not paid a Sunday premium for work undertaken on Sundays. He confirmed that he worked 24 Sundays during his time with the respondent. At the outset of his employment, a supervisor had informed him that his remuneration was €10.01 per hour and that he would receive time and a third for Sundays. In fact, he was paid a flat rate of €10.50, which was increased to €10.75 following the implementation of the new ERO on 1 October 2015. The contract of employment did not state that his remuneration includes a Sunday premium. The complainant submitted that it must be clear at the outset of the employment relationship that the Sunday premium is incorporated in the hourly rate of pay. The complainant outlined that he challenged the reason that he was not paid the Sunday premium between August and November 2015. He sent the respondent an email on 3 November 2015 further outlining his concerns and this was the first time he had referenced the statute. The following day, he commenced work at 5.30am and at 8am, he was approached by his supervisor who told him that he was being let go as he was not suitable. The complainant said that the decision to dismiss him was made because of his complaints regarding the Sunday premium, and he did not accept the bona fides of the reason provided by the respondent on 4 November 2015. He said that he had done well in the role and no complaints had been made against him.

The complainant made submissions that the respondent had now provided a different justification for not paying a Sunday premium to the one originally given to the complainant. The respondent had previously referred to the striking down of the old ERO and that it paid a flat rate. It now sought to rely on a composite or premium rate. The complainant opened the Labour Court decisions of Scally v Lynch and Kelly DWT13102, Chicken and Chips Ltd T/A Chicken Hut v Malinowski DWT159 and referred to the following extract from Viking Security Ltd v Valent DWT1489, where the Court held “The question that arises in this case is whether the requirement to work on Sunday was taken into account in determining the Claimant hourly rate of €10.00. That rate was unilaterally determined by the employer and it is for the employer to show that at the time of its determination it contained an element intended to compensate the employee for the requirement to work on Sunday. 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.”

It was further submitted by the complainant that the respondent had not complied with the Industrial Relations Act and the licensing requirements of the Private Security Authority in ensuring that employees were aware of pay entitlements and supplied with documents such as a grievance procedure. The complainant had an entitlement under the Organisation of Working Time Act to be paid a Sunday premium. It was submitted that the respondent had not provided sufficient evidence that the premium was incorporated in his hourly rate of pay.

Respondent’s Submission and Presentation:

The respondent referred to the contract of employment that provides that the complainant was paid the national minimum wage (then €8.65), without specifying the actual amount. In actual fact, the complainant was paid a composite rate of €10.50, so that the Sunday premium was paid over every hour worked. The respondent acknowledged the complainant had raised the Sunday premium issue in emails of 5, 18 and 25 August 2015. The fact that he was not dismissed at this time demonstrated that the ending of the employment relationship was not related to the Sunday premium issue. Addressing the events of 4 November 2015, the respondent said that at this time, the complainant's six-month trial period was coming to an end. He did not fit the profile and while the complainant had been assigned to a shopping centre, he had been engaged to work on multiple sites. The respondent said that it was concerned about the lack of transport available to the complainant.

The respondent acknowledged that the new ERO came into force on 1 October 2015. This provides a rate of pay of €10.75 and that a Sunday premium shall be paid, without specifying any particular amount. As with other employees, the complainant was not paid a Sunday premium due under the ERO and these monies were due to him. There had been six Sundays worked by the complainant in this period. It now paid €2.15 as a Sunday premium, this being 1/5^th of €10.75. In total, the complainant had worked 28 Sundays during his period of employment with the respondent. It was submitted that there was no custom and practice in the security industry regarding Sunday premium as the previous ERO had specified a particular premium of €3.44. The new ERO does not specify any particular premium.

Findings and reasoning:

The claim relates to a complaint that Sunday premium payments were not paid to the complainant, a security guard. The respondent denies the claim, stating that the complainant was paid a composite rate that included a Sunday premium.

The issues arising in this claim differ with regard to the period prior to 1 October 2015 and the period after this date. This is because the new Employment Regulation Order for the security industry was enacted on 1 October 2015 (Statutory Instrument 417/2015).

The respondent acknowledged that the complainant was due payment for Sundays worked between 1 October and 20 November 2015. There were six such Sundays. The respondent stated that it paid €2.15 per hour as Sunday premium. Taking that the complainant worked 8 hours for each Sunday rostered, the liability is €103.

There was a conflict between the parties over whether the complainant was entitled to a Sunday premium prior to 1 October 2015. The complainant relies on Section 14 of the Organisation of Working Time Act and Labour Court case law. The respondent asserts that the complainant’s rate of pay was the national minimum wage and he was paid a composite or premium rate of €10.50 which encompassed a Sunday premium; no additional payment was now due.

I have considered the written documentation and evidence of the parties they made as part of this adjudication. I reach the following findings. The contract of employment does not state a rate of pay, but refers to the national minimum wage or if superseded by any collective national agreement. The contract refers to annual leave, but no reference is made to public holidays or Sunday premium. Section 14 of the Organisation of Working Time Act provides that an employee may be compensated for having to work on a Sunday, where the fact of having to work on a Sunday has not already been taken account of in the determination of pay. Taking the evidence and documentation provided by the respondent at their height, it cannot be said that it has established that the fact of Sunday work was included in the €10.50 hourly rate paid to the complainant. The contract of employment, nor other documentation, do not make reference to any account being given to Sunday work, and is entirely silent on the issue of Sunday work. This is the approach adopted by the Labour Court in Viking Security Ltd v Valent and I apply it here.

Given this finding, the complainant is entitled to an award of compensation from the respondent. In assessing the amount of the award, I take account of the frequency the complainant worked on Sundays and his entitlement to a premium on top of his hourly rate of €10.50. Again applying the reasoning in Viking Security Ltd v Valent, the custom and practice in the security industry at this time was time and a third. Taking these factors together, I make an award of €420 for the Sundays worked prior to 1 October 2015.

Taking the findings made for the period before and after 1 October 2015, the respondent shall pay to the complainant the amount of €523.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Pursuant to the complaint made in relation to an entitlement under section 14 of the Organisation of Working Time Act, I decide that it is well founded and that the respondent shall pay €523 to the complainant.

Dated:   8^th November 2016