DWT1681

Background

The Respondent Company operated a Meat Processing business until it ceased trading in 2015. It employed the Complainant in the role of Assistant Manager in the business. His employment ended on 5 September 2015. On 12 September 2015 he submitted a complaint to the Labour Relations Commission in which the stated that the Respondent Company infringed sections 14, 20 and 21 of the Act. The Rights Commissioner decided that the complaints of infringements of sections 14 and 21 were well founded and awarded compensation in the sum of €1,000. The Rights Commissioner makes no reference to the complained infringement of section 20 of the Act in the text of the decision.

Section 28(1) of the Act states

• 28.—(1) A party concerned may appeal to the Labour Court from a decision of a rights commissioner under section 27 and, if the party does so, the Labour Court shall give the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal, shall make a determination in writing in relation to the appeal affirming, varying or setting aside the decision and shall communicate the determination to the parties.

Section 14 Complaint

• 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.

  (2) Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.

  (3) For the purposes of proceedings under Part IV before a rights commissioner or the Labour Court in relation to a complaint that this section has not been complied with in relation to an employee to whom this subsection applies (“the first-mentioned employee”), the value or the minimum value of the compensation that a collective agreement for the time being specifies shall be provided to a comparable employee in respect of his or her being required to work on a Sunday shall be regarded as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances:

  Provided that if each of 2 or more collective agreements for the time being specifies the value or the minimum value of the compensation to be provided to a comparable employee to whom the agreement relates in respect of his or her being required to work on a Sunday and the said values or minimum values are not the same whichever of the said values or minimum values is the less shall be regarded, for the purposes aforesaid, as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances.

  (4) Unless the fact of such a value being so specified has come to the notice of the rights commissioner or the Labour Court, as the case may be, it shall be for the person who alleges in proceedings referred to in subsection (3) that a value of compensation of the kind referred to in that subsection is specified by a collective agreement mentioned in that subsection to show that, in fact, such a value is so specified.

  (5) In subsection (3) “comparable employee” means an employee who is employed to do, under similar circumstances, identical or similar work in the industry or sector of employment concerned to that which the first-mentioned employee in subsection (3) is employed to do.

  (6) References in this section to a value or minimum value of compensation that is specified by a collective agreement shall be construed as including references to a value or minimum value of compensation that may be determined in accordance with a formula or procedures specified by the agreement (being a formula or procedures which, in the case of proceedings referred to in subsection (3) before a rights commissioner or the Labour Court, can be readily applied or followed by the rights commissioner or the Labour Court for the purpose of the proceedings).

• The Complainant told the Court that he was required to work on Sunday in the relevant statutory period. He further told the Court that “his having to work on that day was not otherwise taken account of in the determination of his or her pay and accordingly submitted that he was entitled to 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.

Mr Grogan, solicitor, told the Court that there had been an Employment Regulation Order in force in the Industry that provided for double time for Sunday Work. He acknowledged that the Complainant was employed in a category of staff that was not covered by the Order. However he said that the Court should be guided by that practice when deciding on an appropriate award. Finally Mr Grogan told the Court that the Supreme Court had struck down the legislation under which the Employment Regulation Order had been created and that the Court could not ignore that development either.

Respondent’s Position

The Liquidator did not attend the hearing. He wrote a letter to the Court in which he stated that the Company had no assets from which to pay any award.

Findings of the Court

The Court notes the uncontested evidence of the Complainant. The Court also notes that the Liquidator did not contest the merits of the claims. Instead he notified the Court that there were no funds available from which to meet any award.

The Court finds that the only evidence before it is the uncontested evidence of the Complainant. The Court found him a credible witness. Accordingly the Court accepts his evidence and finds that he worked for six hours on 11 Sundays in the relevant statutory reference period.

The Court was not presented with any evidence to suggest that the requirement to work on Sunday was “otherwise taken into account in the determination of his wages”.

Accordingly the Court determines that the Complaint is well founded.

The Court finds that the practice in the sector was to pay double time for working on Sunday. While the Court is aware that this practice arose out of an Employment Regulation Order that was struck down by the Supreme Court, it was nevertheless the universal level of payment in the sector at that time. The Court finds that, taking all matters into account, a premium of double time for the hours worked on Sunday in the reference period is fair and reasonable in all the circumstances of this case.

Determination

The Court determines that the Complaint is well founded. The Court orders the Respondent to pay the Complainant 66 hours pay which the Court determines to be €813.78 for the infringement of Section 14 of the Act.

The Court so determines.

Section 21 Appeal

Mr Grogan advised the Court that he was withdrawing this appeal from the Court.

Findings of the Court

The Court finds that the appeal is no longer before it and determines accordingly.

Signed on behalf of the Labour Court



Brendan Hayes
CR______________________
28th September, 2016.Deputy Chairman



NOTE

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