Complainant

Respondent

Anonymised Parties

General Operative

Service Activities

Representatives

In Person

James Cleary IBEC

Act

Complaint/Dispute 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-00031895-001

30/10/2019

The claimant is primarily employed as a passenger reduced mobility operative and driver in the respondent company within the Customer Care Department, having commenced employment with the company since July 2008.

The claimants position is that he regularly works Sundays and does not receive Sunday Premium.

The respondent refutes the claim that the complainant does not receive a premium payment for Sunday work. They submit that the letter offering employment to the claimant clearly states that the rate of pay takes the claimants Sunday Premium entitlement into account

The claimant submits that he is working for the respondent since 2008. During that time, he regularly works Sunday for which he does not receive a Sunday Premium.

He submits that there is no mention of Sunday Premium in his Contract of Employment and no mention of Sunday Premium in the Company Handbook.

The respondent refutes the allegation in its entirety that it is in breach of the Organisation of Working Time Act 1997.

The claimant, they submit, received a Premium Payment for working Sundays because of receiving a composite rate, the details of which were outlined in the letter of offer, dated 16th July 2008, as follows:

“You will be paid a flat rate of €12.00 per hour (inclusive of shift and weekend allowances). This rate will increase to €12.50 per hour after six months service upon successful completion of your probationary period”.

The respondent further submits that the current rate being paid to the claimant is €14.19 per hour, which is a €4.09 differential between the hourly Minimum Wage and his salary.

I have considered all of the evidence, both written and verbal, submitted at the hearing including the relevant jurisprudence.

The respondent submitted in evidence that the rate paid to the claimant is significantly over the National Minimum Wage and that this has consistently been the case since the claimant commenced employment in July 2008. They further submit that the current rate of pay is €4.09 in excess of the current National Minimum rate.

The respondent cites a number of cases of jurisprudence in support of its contention that the Sunday Premium is contained in a composite rate including Group 4 Securities v SIPTU / DWT 1996, whereby the Labour Court states “Section 14 (1) of the Organisation of Working Time Act clearly states that where an employees pay has not taken account of the requirement to work on Sunday he/she shall be compensated.”

In the instant case, the respondent submits that the claimant is paid an allowance for working on Sunday and therefore does not have a case under the Act”.

The claimant submits that he regularly works Sundays and does not receive a Premium Payment and that there is no mention of a Premium Payment in his Contract of Employment nor in the Company Handbook.

However, it is clear that in its offer of employment to the claimant on 16th July 2008 the respondent stated, “You will be paid a flat rate of €12.00 per hour (inclusive of shift and weekend allowances). This rate will increase to €12.50 per hour after six months service upon successful completion of your probationary period”.

The respondent further established that at all times since the commencement of the claimant’s employment the rate paid to the claimant significantly exceeded that of the prevailing National Minimum Wage.

This fact, coupled with the letter of offer of the 16th July 2008, has demonstrated to my satisfaction that the rate paid to the claimant incorporates compensation for working Sundays in line with the Organisation of Working Time Act 1997.

CA-00031895-001

I find that the claim in the instant case is not well founded.

“Sunday Premium”