ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00006426

 Complaint(s):

Date of Adjudication Hearing: 01/06/2017

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 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).

 Background:

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

The Complainant was employed from October 28^th 2012 to November 9^th 2016 and she submitted her claim to the WRC on December 13^th 2016. Under Section 27.4 a person is limited in time to presenting their case to the WRC to six months “beginning on the date of the Contravention”. Therefore the eligible period for me to consider, under the Act, is from June 13^th 2016 to the date the claim was submitted on December 13^th 2016.

Section 14.1 of the Organisation of Working Time Act requires an employee who works on a Sunday to be paid “an allowance of such an amount is reasonable having regard to all the circumstances” or “increasing the employees rate of pay by such an amount as is reasonable having regard to all the circumstances”.

In this case the Respondent considered the issue at the commencement of employment and did provide an allowance as per the contract statement up to June 13^th 2016 but the contractual relationship became silent on the issue thereafter on the Complainant taking up her new role as Supervisor. From June 13^th 2016 to the date of her cessation of employment, the Complainant worked 153 hours on Sundays over 16 Sundays. The Complainant did not receive any written notification of the change to her Terms of Employment when her position and wage per hour changed on June 13^th 2016. Prior to that, the Contract was explicit that the rate of pay included a premium for working Sundays and for overtime. However, from June 13^th 2016 the contractual issue felt silent on whether the new rate included a premium for working Sundays or overtime. The Respondent assumed that this term of the contract was unchanged from before the new rate was introduced. However, the statement in the original contract regarding a premium specifically referred to the rate of pay that the Complainant had prior to her promotion. The Respondent argued that the allowance term is a stand alone term applicable to any rate of pay during the Complainants employment but the contract does not support this. The Respondent did not state in any formal communication to the Complainant that the new rate of pay also included a premium or allowance for Sunday pay and Overtime.

The alleged contravention began on June 13^th 2016 and continued to November 9^th 2016. As the specific percentage or Euro premium was not identified in the initial contract it falls to me as to what might be a reasonable allowance for the Sundays worked between June 13^th 2016 and November 9^th 2016. The Complainant earned approximately 1,300 Euros for this Sunday work and I have decided to apply a Sunday allowance of 25% to these earnings. It is noted however that the Respondent, given that the Minimum Wage for the period when the allowance was applied under the original Contract was 8.65 Euro and the actual rate of pay was 9 or 9.32 Euro then the maximum percentage allowance that the Respondent applied in that period for Sunday Working was between 4% and 8%.   Therefore while the rate of 25% is higher that that applied by the Respondent it does appear to the Adjudicator “as is reasonable having regard to all the circumstances”. Having assessed the approximate earnings of the Complainant from June 13^th 2016 to November 9^th 2016 as 1,300 Euros I award the Complainant 325.50 Euros Sunday allowance to be paid within four weeks of todays date.

There is no provision for a “Bonus” to be paid for Sunday work and that claim is not well founded. For clarity there is no legal or contractual entitlement for me to consider an amendment to the allowance prior to June 13^th 2016 as the claim is out of time from date under the Act and the contract specifically included an allowance for Sunday working prior to that.

Dated:   13^th June 2017

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words: