Complainant

Respondent

Anonymised Parties

A Section Manager

Distribution Centre

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00014895-001

09/10/2017

The complainant is employed by the respondent since the 21st of May 2007 as a section manager in its distribution centre. He is paid €3,100.09 per 4 weeks for working a 37.5 hours week. He is claiming that the respondent is in breach of Section 14 of the Organisation of Working Time Act 1997, in that the respondent has failed to pay him a premium rate for working on a Sunday.

The complainant was employed as a Section Manager in a Distribution Centre and he is claiming that the respondent failed to pay him a premium rate for working on a Sunday. It was submitted that this was in breach Section 14 of the Organisation of working Time Act 1997.

The union submitted on behalf of the complainant that for the first 3 years of his employment he did not have to work on Sundays. The managers were then called to a meeting and were told that due to the business needs of the company they were required to work every 6th Sunday and everyone accepted the need for it. He was then rostered to work for about one in every six Sundays, but for the last 13 months, he stated that he has worked one in every three Sundays. Some managers do not work Sundays and some managers swap Sundays with other managers. The complainant said they were not paid extra for working on a Sunday. They raised the matter with management and were told that they were expected to work 5 days over 7 days and that pay for Sunday work was included in their salary. The respondent did not provide a breakdown of the Sunday pay or inform him which part of the salary which related to Sunday work.

The complainant’s union submitted that the complainant’s contract of employment does not mention Sunday premium payments whereas it forms part of the General Operatives contract of employment who are paid a 20% premium for Sunday work.

Section 14(1) provides: “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.”

It was submitted that this section provides that an employee required to work on Sunday is entitled to premium pay for work which may consist of a payment or time off in lieu or a combination of both. In addition, the case of Masterlink Logistics and Jakub Rudzinski DWT171 is relevant. The Labour Court in upholding a decision of the Adjudicator held that there was no clear and identifiable matrix for the calculation of a premium payment.

It was submitted that there has been a breach of the Act and the complainant is seeking compensation in accordance with S. 27 of the Act.

The complainant was employed by the respondent on 21/05/ 2007 in a Distribution Centre. He is paid a yearly salary which is reviewed annually. His contract of employment provides for minimum hours of work per week of 37.5 normally scheduled over a maximum of 5 working days over 7. In addition, he would receive payment in lieu or a specific minimum payment should he be required to work hours in excess of his contractual working week.

The complainant was appointed a warehouse manager on the 8th October 2013 and signed the contract on the 11th October 2013 and worked under its terms and conditions including on the Sundays.

In February 2017, the complainant’s union wrote to the respondent on behalf of 3 of the 40 Managers stating that it was its members contention that they do not receive a Sunday premium for the Sundays they work.

In March 2017, a meeting was held with the union and the complainant and the other 2 managers. It was clarified for the complainant that his salary reflected his liability to work on Sundays and that the pay was consolidated into his salary.

It was submitted that the complainant’s contract provided he had to work 5 over 7 days per week, which is inclusive of a Saturday and a Sunday.   The contract notes the salary for the role and all other terms and conditions are linked to the salary except additional payments which are specifically set out in the contract for additional hours worked. It is the position of the respondent that the salary clearly covers the liability to work a Sunday. It is the respondent’s argument that had the salary not had the Sunday payment consolidated into it, the contract would have clarified that an additional payment would have applied for Sunday and would have been referenced under the Additional Payments paragraph of the contract.

To support the above contention, the respondent submitted that the Warehouse Operative contract, which is a weekly paid contract, identifies a Sunday premium for Sunday work, this is because the Warehouse Operatives are hourly paid rather than salaried and as such could not have the Sunday premium incorporated into an hourly pay rate.

The respondent further notes that the complainant accepted the contract on the terms agreed and worked the contract including Sundays and therefore accepted that his Sunday working was paid via his salary just as overtime was paid for as an additional payment.

It is clear that it is custom and practice within the organisation that section manager salaries cover the obligation to work Sundays and that the Sunday premium is consolidated therein. There are 40 other managers who are directly comparable to the complainant who have raised no claim in respect of a Sunday premium.

It was submitted that the Masterlink case cited above referred to an hourly paid employee and was not relevant to the case herein as the complainant is a salaried employee. Section 14 states (“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”). The respondent relies on the above to support its argument. The legislation clearly envisaged that, the default position in relation to pay for working on a Sunday, is that it is taken into account in determination of pay and it is only in the absence of this ‘default’ position that other ‘means’ are considered. It is the respondent’s position that the fact the complainant must work on a Sunday has been taken into account in determining the complainant’s pay otherwise it would have been specifically referred to in the contract of employment.

Section 14(1) provides: “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—

The respondent’s argument is that the complainant’s salary included a Sunday premium. The question is, has Sunday pay been taken into account in determining the salary payable? In examining the matter, I note that the contract provided for additional payments for overtime, but there is no mention of a Sunday payment premium. It is also relevant that the respondent provided in the Warehouse Operatives contracts of employment with a premium of 20% for working on a Saturday or a Sunday. I also note that under the Additional Payments heading in the complainant’s contract that there is no mention of a payment for Sunday work whereas overtime is mentioned. It is significant that the complainant worked one in six Sundays or more recently one in three Sundays for the last number of years without seeking a Sunday payment and 40 of his colleagues have not made any request for such a payment.

For these reasons and in the absence of any evidence to the contrary, I am satisfied that any Sunday premium payment for the complainant’s contractual requirement to work 5 days over 7 which included working 1 in 6 Sundays was factored into his salary. Therefore, I find no breach of Section 14 of the Act.  

I find that this complaint is not well founded and accordingly I dismiss the complaint

Section 14 Organisation of Working Time Act, Sunday Premium Pay.