ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002784

Complaints for Resolution:

Date of Adjudication Hearing: 07/07/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 27 of the Organisation of Working Time Act, 1997, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Complainant’s Submission and Presentation:

The complainant worked for the respondent from 12 March, 2012 to 31 October, 2015, a period of 3.5 years .She worked a 40 hour week and was paid €10.00 per hour.

She worked every Sunday during that period and was never paid a Sunday premium. In addition, she was never afforded a break in her working day.

The complainant worked a 10 am -6 pm shift. She opened the premises, completed paper work, made tea available for customers and maintained the change machines .The business had increased in volume and the complainant was always at the service of the customers .She was the sole staff member on duty. She explained that she was aggrieved by the omissions of the respondent.

Respondent’s Submission and Presentation:

The respondent disputed both claims. The complainant had not raised the issue during the course of her employment. The company paid over and above the minimum wage which included a composite hourly rate, inclusive of Sunday premia of €10.00 per hour. The respondent contended that they had records to prove that the complainant availed of her break s and while there were not strict breaks built into the working day, 6.5 hrs of the complainant’s working day was “her own”. The respondent contended that the complainant availed of a number of “cigarette breaks “during the working day.

The respondent pointed to an example of 13/4/2015 and 5/4/2015, where the complainant was not rostered to work on that Sunday and asked to be allowed to submit documents on rosters and breaks, during the course of the complainant’s employment.

Documentation

The respondent submitted two documents on terms and conditions to the Hearing.

1 The written statement of Terms of Employment for the complainant signed by the respondent on 14 May 2015.

2 An unpopulated written statement of Terms of employment relied on by the company since January 2016

Both documents had reference to a liability to work Sundays and a stipulation on break times. Both documents contained the clause:

“Employees must notify the company within one week, in writing, if they haven’t received their entitlements as outlined above “.

The second statement contained the clause

“Sunday premium is included in the hourly remuneration……. of €10.50 per hour “.

The respondent also submitted phone records covering a time span of April - July 2015. They drew attention to records where the complainant was on the work phone for extended periods. The numbers traced were not relating to work.

1         24 April 2015   35 minute local call

2           13 May 2015 22 minute local call

3           6 May 2015   34 minute local call

4           7 May 2015 12 minute local call

5         24 June 2015     40 minute local call

6         26   June 2015   35 minute local call

They submitted that this document proved that the complainant did take her breaks .They also produced a single sheet where they had recorded the complainant’s signature in confirmation that she had received her breaks for week commencing 3 April, 2015.

Legislation involved and requirements of legislation:

Sunday work: supplemental provisions. Organisation of Working Time Act, 1997.

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4. —(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.

Rests and intervals at work.

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2. —(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

Time limits for complaints to an Adjudication Officer S.6 of the Workplace Relations Act, 2015

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 27 of The Organisation of Working Time Act, 1997 requires me to make a decision on the facts raised in the case. I have listened carefully to both parties submissions. I received supplementary information from the respondent on July 15, I apologise for the extended delay before the documents were received by the complainant on 16 September, 2016 .These documents referenced copies of rosters at the respondent business from April 2015 to the time of the complainants departure on October 2015. The complainant was contacted by the WRC on September 23, 2016 to ascertain if he had any commentary on the documents . He had no further comment .

Claim 1 CA 00003805-001 Sunday Premium

The complainant contended that she worked every Sunday from March 2012 to October 2015.She was not paid a specific Sunday premia on top of her €10.00 per hour .I must identify the cognisable period for her claim within the 6 month limitation period of 13 October 2015 - 12 April, 2016 as no argument was advanced on a reasonable cause delay. In light of this, I can only examine the Sundays of 18 and 25 of October, 2015 for the purposes of the claim.

Section 14(1) of The Act provides that an employee who is required to work on a Sunday is entitled to an additional benefit in respect of that requirement if provision for payment had not otherwise been identified. The complainant did not sign her statement of terms and employment until 14 May 2015. This document refers to a liability for Sunday work but there is a single mention of 10 euro per hour in the remuneration section .The Labour Court has expressed a difficulty with the argument of a composite rate in excess of the minimum wage as submitted by the respondent in this case.

Viking Security ltd and Tomas Valent DWT 1489

“In the Courts 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 discernible 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 “

I am bound for the Courts determination in this regard .I find that the composite rate as described by the respondent is not in compliance with the parameters of S 14(1) of the Act , therefore , I find that the complainant is well founded and I award €100.00 in compensation .

Claim 2 CA-00003805-002   Break Times

It was common case that the respondent had been subject of a WRC Inspectorate investigation in 2015 and it would appear that documentation covering rest breaks emerged after that period. The respondent placed into evidence a copy of successive rosters governing the period of April 2015 to November 2015. There was a rider attached to each roster

“I declare that the information in relation to daily and weekly hours worked is correct and that I have received my statutory rest entitlements”

These were signed by the complainant up until June but not after this date .I have considered the evidence of both parties and I am mindful of the signed terms of employment document in May 2015. This document had a rider that:

“Employees must notify the company within one week, in writing, if they haven’t received their entitlement to ….. Rest breaks.

The respondent gave undisputed evidence that the complainant had not raised the matter of breaks during the course of her employment. Based on the records produced by the respondent and the absence of any further submissions from the complainant ,I find that I prefer the evidence of the respondent over that of the complainant in this regard. I find the complaint to be not well founded and therefore cannot succeed .

Patsy Doyle, Adjudicator.

Dated:   28 October 2016