ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002077
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00002837-001 | 24/02/2016 |
Date of Adjudication Hearing: 05/07/2016
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
The complainant submitted a complaint to the Workplace Relations Commission which was received on 24 February 2016. The complainant attended the hearing on her own. She supplied a detailed written submission. In her evidence she stated that she worked as a barista in a coffee shop from 1st October 2013 until she left of her own accord on 31st October 2015. The complainant was employed on a "zero hours" contract and her hours varied greatly. She was paid a composite rate of €8.80 per hour. At the outset the complainant submitted that as she worked the majority of Sundays the composite pay rate of €8.80 per hour, €0.15 of which was given as compensation for Sunday work, was unreasonable. In evidence the complainant stated that during her period of employment she was paid an hourly rate of €8.80 per hour taking all Sunday work into account as per her contract of employment (copy provided) and that staff were required to work two or more Sundays per month. It was the complainant's contention that the composite rate of €8.80, based on a 40 hour week and one Sunday per month, would earn an employee +1/3 for that Sunday, the norm for the sector. However, in her case as she ended up working the majority of Sundays, her compensation was nowhere near the 1/3 premium enjoyed by others in the same employment and the sector in general. The complainant provided a document with breakdown of days and hours worked over an 18 week period. Applying this information to rates of pay the complainant submitted that her loss over this 18 week period, in comparison to someone earing time + 1/3 for Sunday working, amounted to €237.55
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Respondent’s Submission and Presentation:
The respondents did not attend the hearing and I was not provided with a submission from them.
Legislation involved and requirements of legislation:
Sunday work is covered under section 14 of the Organisation of Working Time Act:
(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.
Issues for Decision:
Was the complainant paid reasonable compensation for working on Sundays?
Is the composite rate of €8.80 per hour sufficient to cover the demands of the Act with regard to Sunday Working?
Decision:
I have carefully considered the evidence and I conclude as follows.
The composite rate of €8.80 is, it would seem, designed to produce a rate of pay that includes a premium of +1/3 for staff, working one Sunday in four, in line with the sectoral norms.
From the evidence adduced at the hearing it is clear the complainant generally worked well in excess of one Sunday per month and accordingly could not be said to have received the intended value for hours worked on Sundays provided by the composite rate. She was not therefore receiving a rate that was "reasonable having regard to all the circumstances."
Based on the foregoing findings and in accordance with the provisions of Section 27(3)(a) of the Act I declare that the complaint under Section 14 of the Act in relation to Sunday working is well founded.
In accordance with the provisions of Section 27(3)(c) of the Act I require the respondent to pay the complainant compensation in the sum €684, the equivalent to the loss of the Sunday premium over a 12 month period. As this is a compensation award it is, subject to Revenue approval, non-taxable.
Dated: 12th October 2016