Complainant

Respondent

Anonymised Parties

A Barman

A Public House

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-00023128-001

09/11/2018

This is a complaint about the non-payment of a premium for working on Sundays. The complainant was employed as a barman in the respondent’s public house from March 11th 2016 until June 26th 2018, when he resigned. He claims that he never received a premium for working on Sundays, and he was not informed of any arrangement about an additional payment for Sunday working.  

Following his resignation on June 26th 2018, the complainant said he went to work for another pub. When he got his payslip, he said that he noticed that he was paid an additional amount for working overtime and for working on Sundays. A separate rate of pay was indicated on his payslip for overtime and Sunday working and this made him wonder why he hadn’t received these payments when he worked for the respondent.

On October 5th 2018, when he got advice from the Citizens Information Centre, the complainant sent an e mail to the respondent and asked him why he had not received pay for overtime. The respondent replied that all hours were paid at a “composite” rate which included compensation for working on Sundays and for drinking up and cleaning up times. He said that staff on hourly rates in his establishment are not paid an overtime rate.

On November 9th 2018, the complainant submitted a complaint to the WRC about the non-payment of a premium for Sunday working. At the hearing, he said that he worked almost every Sunday from the date he commenced in 2016 and during 2017, but that in 2018, he worked very few Sundays. He didn’t get a contract of employment and he never received a letter of offer of employment setting out his rate of pay and the rate to be paid on Sundays. He didn’t receive a staff handbook. He brought copies of his payslips from the date that he started working with the respondent and these show that he was paid €11.00 per hour for all hours worked.

In reply to this complaint, the respondent said that he is in the process of drawing up contracts of employment for staff and he also has a handbook drafted. He accepts that the complainant didn’t receive a statement of his terms and conditions of employment.

The respondent’s case is that pay for working on Sundays is included in the hourly rate of €11.00 per hour and that all the hourly-paid employees are on this rate.   The basic rate is €10.00 per hour, with a 10% premium added to compensate for working on Sundays.

In defence of his position, the respondent said that when the complainant resigned, he agreed and signed a “form of discharge” in which he accepted a voluntary payment of two weeks’ pay in lieu of notice and he accepted this “in full and final settlement of all claims or debts of any description” against the respondent.

The Legal Framework

The provision for payment of a premium for working on Sundays is set out at section 14 of the Organisation of Working Time Act, (“the Act”):

(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.

Findings

In the case under consideration, the respondent said that the hourly rate of €11.00 included a 10% premium for working on Sundays. He accepted that the complainant was not notified of this in writing. The complainant said that he was not informed about it at the time he was recruited and the first time that he had any idea that he was entitled to a Sunday premium was when he received this payment in his new job. As an Italian citizen, I accept that the complainant may not have been as familiar with his legal entitlements as an Irish person and I find that his evidence in this regard was credible.

The complainant said that he worked most Sundays in 2016 and 2017 and that he was often called in to work at the last minute. The respondent produced a schedule of Sundays hours worked amounting to 350 hours from March 2016 until the complainant finished working with the respondent in June 2018.

Labour Court Precedents

The issue of a Sunday premium for a bar worker was considered by the Labour Court in 2012 in the case of The Fleet Street Inn Dublin Limited and Rafal Burtan, DWT 123. Mr Burtan was employed as a security guard and paid an hourly rate of €18.10, which, his employer said, included a Sunday allowance. As there was no documentary evidence setting out how the hourly rate of pay included a Sunday premium and no reference in Mr Burtan’s payslip to a Sunday premium, the Court found that his hourly rate did not include such a premium.

In another Labour Court case in 2015, Blue Thunder Fast Foods Limited and Joanna Oleniacz, DWT 15124, the complainant was paid €9.50 per hour, and her employer said that 50 cents of this was to compensate for Sunday working.   As the employer could produce no record of how this had been communicated to Ms Oleniacz, the chairman found that section 14 of the Act had been contravened in respect of the requirement to pay a Sunday premium.

Conclusion

I am satisfied that, while he was employed by the respondent from March 2016 until June 2018, the complainant worked at least 350 hours on Sundays. I am also satisfied that he was not informed of how he was to be compensated for Sunday working. Taking the Labour Court precedents as guidance on this matter, I have reached the conclusion that the complainant was not paid a Sunday premium and the respondent was in breach of section 14 of the Act. On this basis, the complainant is entitled to redress in the form of compensation.

As the respondent provided details that the complainant worked for 350 hours on Sundays, and, as he was paid €11.00 per hour, he earned €3,850 for these hours. I have decided that the respondent is to pay the complainant compensation of €1,270.50 gross, which is equivalent to 33% of his hourly rate.

Sunday premium, hourly rate of pay