FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : COOLQUAY LEISURE LIMITED (REPRESENTED BY CONOR LEHANE B.L., INSTRUCTED BY MURPHY CONDON, SOLICITORS) - AND - MR GEORGICA UNTEA (REPRESENTED BY BRIAN LEAHY B.L., INSTRUCTED BY JOHN O LEE & CO, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms Tanham |
1. An appeal of an Adjudication Officer's Decision no ADJ-00006329.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on the 18 July 2017 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 8 November 2017. The following is the Decision of the Court.
DETERMINATION:
This is an appeal by Mr Georgica Untea (the Complainant) against an Adjudication Officer’s Decision ADJ-00006329 in his claim against his employer, Coolquay Leisure Limited t/a Gold Rush, under the Organisation of Working Time Act 1997 (the Act). The Complainant submitted that the Respondent was in breach of Section 14 of the Act as he received no entitlement to a Sunday Premium.
The claim was referred to the WRC on 9thDecember 2016. It is not disputed that during the cognisable period covered by the claim, the Complainant worked three out of four Sundays, working eight hours per shift.
Section 14 of the Act provides, in effect, that where the requirement to work on Sunday is not otherwise taken into account in the determination of a worker’s pay, he or she is entitled,inter alia,to the payment of an allowance of such amount as is reasonable in all the circumstances.
The Complainant commenced employment working with the Respondent on 12thMarch 2012. He is employed as a Cashier/Administrator working in the Respondent’s Casino and is paid €10.50 per hour for all hours worked. The Respondent stated that this rate was inclusive of a Sunday Premium to reflect the requirement for him to work on Sundays.
The Complainant stated that he had not received a written contract of employment at the commencement of his employment. He received a written statement of his terms of employment in May 2015 which included a statement that his hours of work were 40 hours per week and that he could be rostered to work on Sundays. In May 2016, he received a further written statement of his terms of employment which stated that his rate of pay was €10.50 per hour inclusive of a Sunday Premium.
In his evidence to the Court Mr Séamus Murphy stated that this rate of pay included a payment of €1.35 per hour to take account of his requirement to work three Sundays in four. However, he accepted that prior to May 2016 the Complainant had not been given details of his Sunday Premium rate.
The Court notes that there is no collective agreement applicable to workers in a comparable position to that of the Complainant. The Court is of the view that a payment of €1.35 per hour in excess of his basic rate paid over 40 hours per week, amounting to €54.00 per week for the liability to work on Sundays is reasonable in all the circumstances. Therefore, on the evidence before it, the Court is satisfied that the Complainant received an appropriate premium on those Sundays that he worked during the cognisable period. Consequently, the Respondent did not contravene Section 14 of the Act in relation to the Complainant.
The appeal is disallowed and the Adjudication Officer’s decision is upheld.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
24th November, 2017Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.