DWT171

The Adjudication Officer decided that 21 Sundays fell during the cognisable period and that the Appellant was in breach of the Act and awarded a sum of €650 in compensation to the Respondent.

Preliminary Issue

The Appellant raised as a preliminary issue a contention that the decision of the Adjudication Officer and the within appeal are directed against an entity which was not the employer of the Respondent.

The Appellant submitted that the Respondent was employed by an entity called MAS HR Limited on 1^stMarch 2011 following a transfer from a previous employer. The Appellant contended that Masterlink Logistics has no employees. Masterlink Logistics is, according to the Appellant, a holding company and MAS HR Limited is an operations company within the group.

The Appellant contended that the Respondent’s contract of employment dated 1^stMay 2015, which was submitted to the Court, clearly identified the Respondent’s employer as MAS HR Limited. The Appellant contended that the issue of identification of the employer was raised at a first instance hearing on 26^thJanuary 2016 regarding a claim under the European Communities (Protection of Employees on Transfer of Undertaking) Regulations 2003. The Appellant contended that the same Adjudication Officer heard the within complaint at a hearing on 23^rdFebruary 2016.

The Appellant contended that the Respondent tendered his resignation from MAS HR Limited on 11^thMarch 2015 and was re-employed by MAS HR Limited on 1^stMay 2015.

The Respondent submitted that any incorrect identification of employer was inadvertent and submitted that the Act at Section 39 allows a specified Authority to amend the name of the employer on the decision of a specified authority. The Respondent submitted also that the Appellant had raised no issue as regards identification of the employer at first instance.

During the course of the hearing the Appellant confirmed that the entity known as MAS HR Limited has been in liquidation since late 2016.

The Appellant’s representative was queried by the Court at the hearing as to how MAS HR Limited employed the Respondent on 1^stMarch 2011 as submitted, when it was, as also submitted, incorporated as an entity only on 8^thJune 2012. The Appellant clarified in response that in fact the Respondent was not employed by MAS HR Limited in 2011 as earlier submitted but was in fact employed in 2011 by an entity called Masterville Limited trading as Masterlink Logistics [‘Masterville’ exact spelling unknown to the Court].

A document was submitted to the Court by the Appellant which carried a signature date of 19^thOctober 2010 and an “issue date” of 8^thJuly 2011. This document was entitled ‘New Employee Declaration’ and carried the corporate logo of Masterlink Logistics. No other corporate identifier was carried on the form. The Respondent asserted that the signature on that document in the box entitled ‘Employee Signature’ was his. Neither party could give the Court a clear understanding of the meaning of this document.

The Appellant’s direct representative did however state to the Court that

In all of the circumstances the Court has no option but to treat the Appeal before it on its face. The Court notes that the Appellant submitted that Masterklink did not employ staff but did assert at the hearing that in fact an entity called Masterville limited t/a Masterlink did in fact employ the Respondent in 2011. The Court also takes particular account of the statement of the Appellant’s direct representative at the hearing which clarified to the Court that Masterlink employed staff and paid MAS HR Limited.

The Court finds that, on the balance of probability, the Appellant was at all material times and in all material respects, the employer of the Respondent for the purposes of the Act.

The Case

Summary of the position of the Appellant

The Appellant submitted that the rate of pay of the Respondent was €10.50 per hour and that this rate of pay incorporated an allowance for Sunday Working as the working week was five days over seven. The Appellant submitted that compliance with the Act was achieved by payment of an allowance as provided for by the Act at Section 14(1) (a) of the Act. The Appellant acknowledged that the Respondent’s letter of appointment did not specifically address the Sunday allowance but contended that the omission of such a reference does not of itself constitute a breach of Section 14 of the Act.

Summary of the position of the Respondent

The Respondent contended that he had not been in receipt of any premium payment in recompense for the requirement upon him to work on Sundays. The Respondent contended that the decision of the Adjudication Officer was reasonable in all of the circumstances.

The Law

The Act at Section 14(1) provides:-

• 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.

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 if they were not so obligated. Not only must an additional benefit be provided but that benefit must be reasonable in all the circumstances. That entitlement is one of substance which an Adjudication Officer, and this Court on appeal, is obliged to vindicate.

This Court has held (Viking Security Ltd – and – Tomas Valent – DWT 1489) as follows:-

• 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.

The Court finds that a mere assertion that the Appellant’s obligation to work on Sundays was taken into account in determining his rate of pay cannot be taken, on its own, as evidence of compliance with Section 14(1) of the Act.

The Court finds, in the absence of clear evidence as to how such an assertion was given effect in the pay arrangements applied to the Appellant, that the Appellant was in breach of the Act at Section 14(1).

The Court finds that the methodology of calculating pay operated by the Appellant is such that the Appellant’s compliance with the Act is not clearly discernible.

Determination

The Court determines that the Appellant has not demonstrated compliance with the Act during the cognisable period of this Appeal and measures the amount of compensation that is reasonable in all the circumstances at €650. The decision of the Adjudication Officer is affirmed.

Signed on behalf of the Labour Court



Kevin Foley
6 January 2017______________________
MNChairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.