Complainant

Respondent

Anonymised Parties

A Quality Inspector

A Car Rental Company

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-00013916-001

13/09/2017

The complainant claims that he worked three out of every four Sundays on average since he started in the company and did not receive adequate compensation for Sunday work from his employer.

The respondent claims that a Sunday Premium was incorporated into the hourly rate of pay.

The complainant claims that he was initially employed on a 7-month fixed term contract from 21 April 2014 and his contract stated that his rate of pay was €8.66 per hour and that a Sunday premium was incorporated into the hourly rate.

He said that national minimum wage was €8.65 at the time. Therefore, the rate of hourly pay was €0.01 over that minimum wage level. His contract rolled beyond the 7 months and no alternative contract was proposed. He said that the only element that changed was that his hourly rate of pay increased in line with the national minimum wage changes plus 1 cent per hour over that rate. He resigned his position on 11 February 2018 and was being paid €9.56 at that time - the national minimum wage plus one cent per hour.

He claims that on average he worked 3 out of every 4 Sundays – a total of 145 Sundays as his estimation over 4 years approximately. He claims that he approached his employer on numerous occasions seeking a review of the Sunday pay rate without any success. Accordingly, he said he had no choice but to refer the matter to the Workplace Relations Commission.

He said that the Organisation of Working Time Act states that if an employee has to work on Sunday they are entitled to either, a reasonable allowance, a reasonable pay increase or reasonable paid time off work. He said he received none of these in his time working there.

The complainant claims that he is not aware what the proper Sunday premium rate is as regards the custom and practice for the sector. However, he is aware that a comparable company close to where he worked pays its employees a Sunday premium time and quarter for a similar job with parking and valeting duties similar to his role with the respondent. He referred to other Labour Court recommendations were even higher rates for Sunday premiums were recommended.

The complainant said that he is aware, since his resignation, that the respondent has now agreed to pay its employees a Sunday premium rate.

The respondent accepts that the complainant started work with it on 21 April 2014 as a Driver/Valeter and left his employment on 11 February 2018. The respondent accepts that the complainant was paid €9.56 per hour prior to leaving the company. It claims that a Sunday Premium was incorporated into the hourly rate of pay. It claims that the complainant was rostered between Monday and Sunday.

The respondent said that in April 2018 the company introduced an additional payment for all employees who work on a Sunday.

The respondent said that it had made two offers to try to settle the complaint but it was declined by the complainant.

I have considered all the facts and evidence adduced in the course of this hearing.

The Law

Section 14 of the Organisation of Working Time Act 1997 states;

“Sunday Premium -

14.—(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.”

This complaint is in relation to a contravention of Section 14 of the Organisation of Working Time Act 1997, which relates to compensation for working on a Sunday and provides for a number of ways in which the compensation can be calculated, including the payment of an allowance, an increased rate of pay or paid time in lieu.

Firstly, I am mindful of applicable time limits set out in the Act and in this regard, I take note of where the Workplace Relations Act specifies at Section 41 (6) that (subject to subsection 8) an Adjudication Officer shall not entertain a complaint referred after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates. I note the particular dates associated with this case is the six-month period prior to the referral of the complaint and that being 14 March 2017 to 13 September 2017. I am satisfied that this complaint comes well within that time frame. I note here that the complainant claims that he worked 3 out of every 4 Sundays in that period which equates to 19.5 Sundays worked.

I am satisfied that the onus of proof lies on the employer to demonstrate compliance with Section 14 of the Act. The complainant was employed on an initial hourly rate of €8.66 per hour. This equates to 1 cent over and above national minimum wage. I note that at the time of the referral of the complaint the complainant was paid €9.56 per hour, again 1 cent over and above national minimum wage. I am satisfied that the rate of pay was unilaterally determined by the respondent.

The complainant says this hourly rate did not provide compensation for Sunday work. The respondent said that the hourly rate did incorporate a Sunday premium. Having regard to the wording of Section 14, I am mindful that the employee “shall be compensated” for Sunday work by “such an amount as is reasonable having regard to all the circumstances”. I am not satisfied that €0.01 per hour over the national minimum wages is sufficient in that regard. Accordingly, I do not find that appropriate or reasonable.

In order to demonstrate compliance with Section 14 of the Act, it is for the respondent to show that the hourly rate contains an element intended to compensate the complainant for the requirement to work on Sunday. This must be clearly discernible from the contract of employment or the circumstances surrounding the conclusion of the contract of employment as stated by the Labour Court Viking Security Ltd v Valent, DWT1489. The respondent has not demonstrated compliance with Section 14 of the Act and I find the complaint is well founded.

I am satisfied that it is insufficient for the employer to simply say that because the basic rate of pay exceeds the national minimum wage it compensates for Sunday working. I do not accept that this is sufficient to infer that the Sunday premium has been provided. I note that the respondent has since made efforts to attempt to rectify this anomaly and a Sunday premium is now being paid to its workers. It is clear that this Sunday premium was not being paid while the complainant was employed there.

I do not have proper figures to demonstrate a custom and practice for Sunday premium pay for this industry. Therefore, I am guided in this instance by the complainant’s comparator of similar work carried out in a similar type company. The respondent has not provided me with an alternative figure for consideration. Therefore, I find that a Sunday premium of 25% should be considered fair and reasonable in these circumstances.

The complaint in relation to a breach of Section 14 of the Organisation of Working Time Act 1997 is well founded and I order the respondent to pay the complainant €962 (nine hundred and sixty-two euro). Which is calculated as follows -

·         €600 [six hundred euro] as compensation for the breach of Section 14 of the Act which is not taxable.

plus

·         €362 (three hundred ninety-two euro) for actual economic loss

[Calculated as follows – Actual Pay rate per hour on resignation = €9.26

25% of €9.26 = €2.32= Sunday Premium per hour

€2.32 per hour x 8 hours per Sunday = €18.56 owed per Sunday worked

€18.56x 19.5 Sundays (3 out of 4 Sunday) worked in the last 6-month period = €362]

Organisation of Working Time Act - Sunday Premium - complaint is well founded