PWD1828

The Complainant started working for the Respondent on the 18^thSeptember 2009. She understood at that time that she would be paid time and one-third for Sunday work and her payslips at the time reflected that as the rate. However, the amount actually paid was time plus thirty per cent which is the rate that continues to be paid. The cognisable period for the claim is 30^thDecember 2016 to 29^thJune 2017, the date the claim was lodged.

The Employer in its written submission to the Court states,“All staff are paid the same rate of Sunday pay which is time plus 30%. This has always been the Sunday rate of pay and to date staff are still all paid that rate”. The Employer further confirmed that“all staff were on the same rate since the shop opened”and that the Complainant had been paid this rate of time plus 30% since the commencement of her employment in 2009.

Up to the period before July 2011, statutory pay and conditions of employment existed for workers such as the Complainant in the Retail, Grocery and Allied Trades sector through legally enforceable Employment Regulation Orders, the last of which was S.I. No. 213/2011 dated 12^thMay 2011. Part III, Section III of that Order provides for a Sunday Premium of time-and-one-third. Following a High Court Judgement such Employment Regulation Orders became unenforceable as of July 2011.

The Employer told the Court at the hearing that it was at all material times unaware of its obligations under the Employment Regulation Orders. As the Employer has confirmed that the Complainant was in receipt of a premium of less than time-and-one-third between her start date in 2009 and July 2011, it is clear that the Employer was in breach of a statutory provision for that period.

The Employer has confirmed in its written submissions that its Sunday Premium rate remained constant at time plus 30% since from when the shop first opened. It is clear that that rate should, by law at that time, have been time-and-one-third. Given the approach outlined by the Employer, including assertions that it at all times sought to comply with its legal obligations, it is logical and reasonable to assume that had the Employer been in compliance with its legal obligations, as existed prior to July 2011, the rate that would have been payable to the Complainant during the cognisable period would be that of time-and-one-third, having regard to the Employers own assertions of the Sunday Premium rate having remained unaltered since the business commenced.

Thus, but for illegality on the part of the Employer, the Complainant would have been entitled to a Sunday Premium of time-and-one third during the cognisable period of this claim. It seems to the Court that in such circumstances the Employer could not claim an advantage from its default so as to defeat a claim by an employee to an entitlement of the type contended for in this case.

Accordingly, the Court is satisfied, based on the particular facts of this case, that the Sunday Premium that was properly payable to the Complainant during the cognisable period was that of time-and-one-third. The Complainant in her submission to the Court advised that she worked 42 Sundays per annum and this was not disputed by the Respondent. The short fall between the Sunday rate paid and the Sunday rate properly payable was €2 euro per Sunday worked. The Court therefore orders that the Respondent pay to the Complainant arrears in the amount of €42 being 21 Sundays x €2.

The decision of the Adjudication officer is set aside.

The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
17th July 2019______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.