Complainant

Respondent

Anonymised Parties

Floor Supervisor

Café

Representatives

Marius Marosan

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00021680-001

08/09/2018

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

CA-00021680-002

08/09/2018

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

CA-00021680-003

08/09/2018

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

CA-00021680-004

08/09/2018

The Complainant was employed as a Floor Supervisor by the Respondent from 15th March 2016 to 30th July 2018 on an hourly rate of €11 for a 45 hour week.

The complaint referral form was received by the Workplace Relations Commission on 8th September 2018. Therefore, the cognisable period in respect of the claims under the Organisation of Working Time Act is the period from 9th March 2018 until 30th July 2018 when the Complainant’s employment with the Respondent ceased.

The Complainant submits that she never received a copy of her Terms and Conditions from the Respondent.

The Respondent concedes that the Complainant was not issued with a copy of her Terms and Conditions during her employment with the Respondent.

This complaint has been referred under Section 7 of the Terms of Employment (Information) Act, 1994 and the Complainant has alleged a contravention of Section 3 of the Act.

Section 3 (1) of the Terms of Employment (Information) Act, 1994 provides:

“An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment …”

Based on the totality of the evidence adduced, I find that the Respondent has contravened Section 3 of the Act and that the complaint is well founded.

I direct the Respondent to pay to the Complainant compensation in the amount of €1,000 being the equivalent of approximately two weeks’ pay in respect of the contravention.

The Complainant submits that she was required to work on the following public holidays during the cognisable period for which she was not appropriately compensated: 17th March 2018, 2nd April 2018, 7th May 2018 and 4th June 2018.

In addition, the Complainant submits that she is entitled to compensation for the public holiday of 6th August 2018, which fell during the week after she ceased employment with the Respondent.

The Respondent informed the hearing that they were not in a position to provide records in relation to the herein complaint.

Sec 21 (1) of the Organisation of Working Time Act provides that

“an employee shall in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely (a) a paid day off on that day, (b) a paid day off within a month of that day, (c) an additional day of annual leave, (d) an additional day’s pay”.

Section 23 (2) of the Act provides that where

“( a) an employee ceases to be employed during the week ending on the day before a public holiday, and ( b) the employee has worked for his or her employer during the 4 weeks preceding that week,

the employee shall, as compensation for the loss of his or her entitlements under section 21 in respect of the said public holiday, be paid by his or her employer an amount equal to an additional day’s pay calculated at the appropriate daily rate.”

I find that there were four public holidays during the period of my investigation: 17th March 2018, 2nd April 2018, 7th May 2018 and 4th June 2018. In the absence of any evidence to the contrary from the Respondent, I find that the Complainant worked on all these occasions.

Prior to the hearing, the Respondent submitted one payslip in relation to the Complainant dated 8thJanuary 2018 which shows a payment under the heading “BANK HOL”. Whilst this payslip relates to a period outside of the cognisable period, it serves to illustrate how payments in respect of public holidays were recorded by the Respondent.

At the hearing, the Complainant submitted payslips covering the periods during which the following public holidays occurred – 17th March 2018, 2nd April 2018, 4th June 2018. None of the payslips showed a public holiday payment similar to the public holiday payment shown on the payslip of 8th January 2018.

In relation to the August public holiday, I find that the Complainant ceased employment with the Respondent on 30th July 2018 which was during the week ending on the day before the public holiday of 6th August 2018. Therefore, she was entitled to the public holiday benefit on that occasion.

Taking all of the above into account, I find that this complaint is well-founded.

I direct the Respondent to pay the Complainant compensation of €500.00 for a breach of Section 21 of the Organisation of Working Time Act.

The Complainant submits that she was not paid her annual leave entitlement in full.

The Complainant submits that the parties agreed that her outstanding annual leave entitlement was €188 but that she was only paid €100.

The Respondent was not in a position to provide records in relation to the herein case.

Section 19 of the Organisation of Working Time Act, 1997 stipulates that:

“(1) Subject to the First Schedule(which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

a)      4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

b)      one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

c)       8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

In the absence of contradictory evidence from the Respondent, I find that this complaint is well-founded.

I direct the Respondent to pay the Complainant €88.00 for the economic loss in respect of the annual leave.

In addition, I direct the Respondent to pay the Complainant an additional €100 in compensation for breach of her rights under Section 19 of the Act.

The Complainant submits that she did not get paid a premium for working on Sundays.

The Complainant submits that she worked for 6 hours on each of 19 Sundays during the cognisable period.

The Respondent submits that the Sunday premium was included in the hourly rate of €11.

Section 14 of the Organisation of Working Time Act, 1997 provides as follows: “(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.

In Park House Hotel Ltd. v Wlodarczyk DWT 24/2016, the Labour Court said that what was intended by this section was that a worker who is obliged to work on a Sunday is entitled to compensation for that obligation in the form of a benefit which he or she would not receive if they were not so obliged.

I note the Respondent’s assertion that the Complainant’s hourly rate includes a premium to compensate her for working on Sundays. I must now decide if the Respondent’s assertion is valid.

In reaching my decision, I am guided by the Labour Court which held as follows in Viking Security Ltd v Tomas Valent (DWT1489):

“In practice the Court can only be satisfied that an employee has obtained his or her entitlement under s.14(1) of the Act where the element of compensation for the obligation to work on Sundays is clearly discernable from the contract of employment or from the circumstances surrounding its conclusion. Where an hourly rate is intended to reflect a requirement for Sunday working that should be identified and clearly and unequivocally specified at the time the contract of employment is concluded either in the contract itself or in the course of negotiations.”

I note the Labour Court’s findings that compensation for Sunday working should be explicitly stated in the contract of employment or in the associated discussions,

In light of my findings elsewhere in this Decision that the Complainant was not issued with a copy of her Terms and Conditions by the Respondent, I find that the issue of compensation for Sunday working could not have been agreed as part of the Complainant’s terms and conditions.

Accordingly, I find that the Complainant was not adequately compensated for Sunday working and that this complaint is well-founded.

I am of the view that a 30% premium is an appropriate premium to apply in this instance.

In the absence of records from the Respondent, I find that the Complainant worked for 6 hours on each of 19 Sundays during the cognisable period at an hourly rate of €11 giving a total payment of €1,254. A premium rate of 30% applied to this amount gives a sum of €376.20.

I direct the Respondent to pay the Complainant compensation of €376.20 for a breach of Section 14 of the Organisation of Working Time Act.

Terms and Conditions, public holidays, annual leave, Sunday premium