ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004678

Complaint for Resolution:

Date of Adjudication Hearing: 14/02/2017

Workplace Relations Commission Adjudication Officer: Enda Murphy

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 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 was employed by the Respondent as a Chef from April, 2016 until 25^th August, 2016. The Complainant claims that he worked an average of 55 hours per week for the duration of his employment. The Complainant claims that he had a verbal agreement with the Hotel Manager at the outset of his employment that he would be paid an annual salary of €28,000 per annum for working 40 hours per week. The Complainant claims that he requested a written statement of his terms and conditions from the Respondent and was informed that it would be provided. However, he did not receive a written contract during his period of employment. The Complainant submitted that he was informed by the Hotel Manager that any additional hours or overtime that he worked during the summer months would be compensated by time off in lieu during the winter months when the Hotel was quieter.

The Complainant submitted that he worked every Sunday during his period of employment with the Respondent and claims that he did not receive any compensation as required by Section 14(1) of the Organisation of Working Time Act 2007. The Complainant denies the Respondent’s assertion that his annual salary was set at a level to include compensation for working on a Sunday. The Complainant confirmed that his employment with the Respondent terminated on 25^th August, 2016 when he left to take up alternative employment.

Respondent’s Submission and Presentation:

The Respondent submitted that the Hotel opened in April, 2016 under new ownership and the Complainant was employed as a Chef at that juncture. The Respondent submitted that the Hotel’s business was seasonal and as a result the Complainant would have been expected to work an average of 40 hours per week over the course of the year. However, given the seasonal nature of the business this would have resulted in the Complainant being required to work a greater number of hours per week during the summer months and a lesser number of hours during the winter months. The Respondent submitted that the Complainant was given the option of electing to be paid an hourly rate of pay or on a salaried basis and that he elected for the latter method of payment.

The Respondent accepts that the Complainant was not issued with a written contract of employment during his period of employment and claims that it had been the intention to issue a contract to him. The Respondent accepts that the Complainant worked on Sundays during his period of employment. However, it was submitted that he was only required to work a five day week and was given a day off in lieu of working on a Sunday. The Respondent submitted that the Complainant’s salary had been set in a manner to take into account his requirement to work on a Sunday. The Respondent contends that this rate of pay was reflective of the requirement to work on Sundays and that this requirement was taken into account in determination of the Complainant’s pay. The Respondent stated that the Complainant left the position of his own volition on 25^th August, 2016 to take up alternative employment.

The Respondent disputes the Complainant's claim that it has contravened Section 14 of the Organisation of Working Time Act 1997 in terms of the payment of the requirement to pay compensation for working on a Sunday.

Findings and Conclusions:

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.

It was common case that the Complainant was required to work on a Sunday during his period of employment. It was not in dispute that the Complainant worked a total of seventeen Sundays during his period of employment between April, 2016 and August, 2016. The question that arises in this case is whether the requirement to work on a Sunday was taken into account in determining the Complainant’s annual salary of €28,000.

In the present case it was not in dispute that the Complainant was not furnished with a written statement of his terms and conditions of employment during his period of employment. The Respondent submitted that the Complainant elected to be paid on salaried basis and that this rate of pay was reflective of the requirement to work on Sundays. The Complainant disputes the Respondent’s contention that the annual salary which he agreed with management at the outset of his employment was inclusive of any element of compensation for working on a Sunday.

The Labour Court held in the case of Viking Security and Tomas Valent^[1] that “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.” The Labour Court also held in the case of the Park House Hotel Limited and Edyta Wlodarczyk[2] that “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.”

Having regard to the totality of the evidence adduced, I am not satisfied that the Respondent has demonstrated that the annual salary which was negotiated with the Complainant at the outset of his employment was inclusive of any element of compensation for working on a Sunday. In the circumstances, I am not satisfied that the Respondent has discharged the burden of proving that the requirement to work on Sunday has been taken into consideration in the determination of his rate of pay. Accordingly, I find that the Respondent has infringed Section 14 of the Act in the present case.

I find that a premium of time and one third is reasonable in this industry. I note that the Complainant worked a total of 17 Sundays (8 hours per day) during the cognisable period. Therefore, he should be paid be paid an additional €4.48 per hour worked = €4.48 x 136 hours = €609.28.

In addition to the economic loss, I find that he should be paid €300 for the contravention of his rights under this Act.

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.

Having regard to the foregoing, I find that the Respondent has contravened Section 14(1) of the Organisation of Working Time Act 1997. In accordance with Section 27 of the Act, I order that the Respondent should pay the Complainant €609.28 for the economic loss and in addition compensation of €300 (three hundred) for the contravention of his rights under this Act.

Dated:   25^th April 2017