Complainant

Respondent

Anonymised Parties

Immigration Officer

Government Department

Representatives

                 Bowman McCabe Solicitors

                    Chief State Solicitor's Office

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-00026657-001

28/02/2019

The Complaint herein was lodged on the 28th of February 2019 and contains the single complaint that the Complainant is seeking compensation for working Sundays.

The Complainant was represented, and I was provided with a comprehensive submission and heard from the Complainant in person.

The Respondent was represented, and I was provided with a detailed Submission. The Respondent denied that it was not paying a compensatory amount in respect of Sunday working.

I have carefully considered the evidence adduced in the course of this hearing. The Complainant has worked with the Airport Immigration Services since May of 2017. He has worked as an Immigration Control Officer. It is noted that this position was previously filled by members of the Garda Siochana but that the positions along with many other similar positions came to be civilianised over the recent period of austerity.

I note that the position of Immigration Control Officer was advertised in and around June of 2016 and that the complainant applied online in this regard. There can be no doubt that the information provided to the Complainant at the time that he applied for this job included a summary of the terms and conditions of employment which clearly outlines that the individual officer would be expected to work for 7 twelve-hour shifts over a 14-day period. In particular, I note that the Complainant would have been advised (through this same documentation) that he would be expected to work every second weekend and that that included Sundays.

The same document goes on to state that the position would (in addition to the basic weekly wage) attract a further 25% salary by reason of the shift work. Separate arrangements applied if the shift fell on a Public Holiday.

It is the Respondent’s contention that it is self-evident that the shift allowance of 25% over and above the basic pay has to include an element of compensation for the fact of working every second Sunday. This says the Respondent is clear from the document and in particular from the fact that the said summary of terms and conditions explicitly sets out how the shift pattern (which includes Sundays) will operate.

The Complainant disagrees. His case is that there is an affirmative legal obligation imposed on the Respondent under Section 14 of the Organisation of Working Time Act of 1997 which states:-

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 Complainant has provided me with a line of authorities which provides that the payment of a compensation for any requirement to work on a Sunday (“a Sunday premium”) should be discernible and identifiable and should not be somehow inferred from the overall rate of pay. I have considered the cases of Ballinard Transport Limited -v-   Zolton Gonczi DWT 1368 May 2013 and Viking Security Limited     -v- Tomas Valent DWT 1489 October 2014 in this regard. In the latter case the Court stated that :-

“In practise the court can only be satisfied that an employee has obtained his or her entitlement under s.14 of the Act where the element of compensation for the obligation to work Sundays is clearly discernible from the Contract of employment or from the circumstances surrounding its conclusion. Where an hourly rate is intended to reflect the 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.”

The Complainant points to the fact that compensation for working Public Holidays is clearly and separately set out in his final Contract of Employment and there is therefore no suggestion that that entitlement (Public Holiday - as provided for under the OWT Act) has been rolled into the one “shift allowance”. The Complainant says that there is no reason to imply that Sunday premium has been rolled into the shift allowance.

I accept fully the many and varied employment grades which provide for and detail separate “shift” “Sunday” and “Public Holiday” and other allowances etc.. These are payments recognised by Statute and must be paid. I also accept that there ought be clarity around these payments.

The Respondent accepts its legal and positive obligation to make a Sunday Premium payment. The Respondent has asked that I consider the fact that there is some room for looking at (as the Labour Court put it) …”.. the circumstances surrounding its conclusion”.

The Respondent set out the history of the creation of the transfer of these posts from members of the Garda Siochana to the Public Service. I accept the evidence (and it wasn’t challenged), that the relevant Unions and the Department of Justice engaged in a long and protracted engagement in relation to the creation of these posts. It is clear from the evidence that initially the rate of pay was intended to include basic pay together with allowances for the fact of it being shift work (24-7- 365) as well as separate arrangements for both Public Holiday and a Sunday allowance. I have been told (and it has not been challenged) that the shift allowance was initially offered, by the Employer, at a rate of in and around 17%. This eventually rose to 25% and this was pushed for by the Unions who, I have been told, understood that this 25% shift allowance incorporated the Sunday Allowance which had previously been sought separately.

On balance I find there to be an unavoidable truth to this proposition. The Unions have not denied that this was the intention of the negotiating parties.

However, I do have some sympathy for the Complainant who under Statute is entitled to a Sunday premium for every Sunday worked. It was not necessarily for him to know that in taking up this job that he would not receive such a premium in the ordinary way and that the intention of the Contracting parties was that Sunday premium would be covered by the shift pay. The Contract of Employment is absolutely silent on the issue of working Sundays. Ideally, the Contract of Employment should have been drafted so as to include a proviso pointing out that the shift pay is agreed to include a premium for the expectation that every second Sunday will be worked. This did not happen, and to some extent I am bound to recognise that the contra proferentem rule should apply here. Technically, the ambiguity should be interpreted in the Complainant’s favour. In making a finding in the Complainant’s favour I am mindful of the fact that the Complainant knew or ought to have known that the Sunday premium had always been incorporated into the shift pay.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 - CA-00026657-001

The Complaint herein is well founded and I award compensation in the amount of €500.00.