DWT192

DETERMINATION:

Background to the Appeal

This is an appeal on behalf of Urbanity Limited (‘the Respondent’) against three decisions of an Adjudication Officer (ADJ-00013370: CA-00017601-001; CA-00017601-002 and CA-00017601-003, each dated 24 September 2018) under the Organisation of Working Time Act 1997 (‘the Act’). The Notice of Appeal was received by the Court on 2 November 2018. The Court heard the appeal in Dublin on 3 January 2019.

Ms Zuzana Mlcochova (‘the Complainant’) was employed by the Respondent as a part-time server in the Respondent’s café from 24 September 2017 until 16 February 2018. At the commencement of her employment, the Complainant’s hourly rate of pay was €9.50. This increased to €9.75 per hour in 2018. The Complainant referred three complaints under the Act to the Workplace Relations Commission on 22 February 2018, all of which were upheld by the Adjudication Officer and are the subject of the within appeal. The Complainant also referred a complaint at first instance under the Terms of Employment (Information) Act 1994 which the Adjudication Officer held was not well-founded. Neither Party has appealed this decision to the Court.

The Complaints under Appeal

(1) CA-00017601-001: This is a complaint in relation to section 14 of the Act which provides for compensation for Sunday working. The Complainant submits that she was not informed by her former employer that her contractual hourly rate of pay included an element of compensation for Sunday working. Her written contract of employment provides: “Your hourly rate of pay will be €9.50 per hour, paid weekly in arrears. The rate of pay is inclusive of all shift, roster and overtime allowances including weekend work.”

The Respondent submits that the Complainant was contracted to work a seven-day roster. Her written contract states her hours of work as follows: “Your normal working hours will be ten (10) hours per week on a rotating shift between the hours of 7.00am and 11.00pm over a seven-day working week.” The Respondent further submits that the rate of pay received by the Complainant exceeded the national minimum rate of pay, therefore, included an element of compensation for Sunday working.

The Adjudication Officer held that the Complainant’s claim was well-founded and awarded her €2,000.00 in compensation.

Section 14(1) of the Act provides:

• “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.”

The Court, therefore, finds that this element of the appeal succeeds. The decision of the Adjudication Officer under this head is set aside.

(2) CA-00017601-002: This is a complaint in relation to 23 of the Act which provides for the payment of accrued but untaken annual leave on cessation of employment. The Complainant submits that she was not paid for annual leave she accrued in 2017. The Adjudication Officer held that the complaint was well-founded and awarded the Complainant the monetary value of 12.12 hours annual leave (€118.17) plus compensation of €300.00.

The Respondent submits that its contractual annual leave year runs from 1 January to 31 December. The Complainant’s written contract states that “Annual leave must be taken in the current leave year and cannot be carried forward from one leave year to the next.” The Respondent accepts that it previously had a mistaken understanding of its obligations in relation to payment for accrued statutory annual leave on the cessation of employment and erroneously believed it could rely on the express contractual provisions quoted above. However, it now accepts that the Complainant was entitled, on ceasing employment in February 2018, to payment for the annual leave she accrued in 2017. However, it nevertheless appeals the quantum of compensation awarded by the Adjudication Officer for the breach of section 23.

The Court finds, therefore, that the Complainant is entitled to payment for the annual leave she accrued in 2017 (€118.17). The Court also directs the Respondent to pay the Complainant compensation of €450.00 for the breach of section 23. The decision of the Adjudication Officer is varied accordingly.

(3) CA-00017601-003: This is a complaint in relation to section 21 of the Act which provides for entitlements in respect of public holidays. The Complainant submits that she was not paid correctly for her shift on 30 October 2017. The Adjudication Officer held that this complaint was well-founded and directed the Respondent to pay the Complainant €29.25 for three hours she had worked on 30 October 2017 but for which she had not been paid. The Adjudication Officer also awarded the Complainant €500.00 compensation for the breach of section 21.

The Respondent submits that the Complainant was paid in full for the 7.5 hours she worked on 30 October 2017 and she received additional pay of 5.5 hours being the equivalent of an extra ‘day’s pay’ in the Complainant’s case having regard to the provisions of the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997.

Having carefully considered the relevant payslips and timesheets submitted by the Respondent – which were not disputed by the Complainant – the court finds that the Complainant was fully compensated for working the public holiday that fell on 30 October 2017. Accordingly, the Respondent’s appeal under this head succeeds and the decision of the Adjudication Officer is set aside.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
MK______________________
30 January 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.