DWT1710

He submitted a complaint under section 27 of the Organisation of Working Time Act 1998 to the Workplace Relations Commission in which he alleged that the Respondent required him to work on a Sunday and that it failed to comply with section 14 of the Act in respect of those days.

The Adjudication Officer decided as follows

I find that the respondent has paid the complainant all sums due to him in relation to his Sunday Supplement. In the circumstances the complainant’s case fails.

This decision issued on 15 February 2017.

The Complainant appealed against that decision to this Court on 22 March 2017.

The case came on for hearing before the Court on 4 May 2017.

The Law

• Section 14 of the Act states

  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).

Position of the Parties

The Complainant told the Court that section 14(1) of the Act had not been complied with by the Respondent.

When the matter came before the Court the Respondent acknowledged that, from the commencement of his employment until the date on which the complaint was filed with the Workplace Relations Commission, it had not paid the Complainant compensation for working on a Sunday in a manner consistent with section 14(1) (a), (b), (c) or (d) of the Act. It further conceded that working on Sunday it was not otherwise provided for in the Complainant’s contract of employment which was laid before the Court for its consideration.

It did however state that after the Complaint had been filed with the Workplace Relations Commission it had increased the Claimant’s rate of pay by €5 per day in order to meet its obligations under the Act. It also made this payment retrospective to the commencement of the Complainant’s employment.

Findings of the Court

The Court finds that in the relevant reference period leading up to the date on which the Complaint was filed with the Workplace Relations Commission the Respondent had deprived the Complainant of his entitlement under section 14(1) of the Act. That infringement cannot be undone by an event that occurred subsequent to the filing of the Complaint. However it is a factor that may be taken into consideration when determining the level of compensation to award a complainant for an infringement of his rights under the Act.

In this case the Complainant worked for the respondent from May until September 2016. During that time he worked on nine Sundays before he received any compensation or allowance for so doing. No collective agreement was brought to the Court’s notice that can be applied in this case in accordance with section 14(3) of the Act. Accordingly the Court must, from its own expert knowledge in this area decide on an appropriate level of compensation to apply in this case.

Determination

Taking all matters into account the Court awards the complainant compensation in the sum of €1500 for the infringement of his rights under section 14 of the Act.

The Court sets aside the decision of the Adjudication Officer.

The Court so decides.

Signed on behalf of the Labour Court



Brendan Hayes
LS______________________
11 May 2017Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.