Complainant

Respondent

Anonymised Parties

A Manager

A Pizza Restaurant

Representatives

Liam R. Fitzgerald Solicitor

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-00026387-001

19/02/2019

The complainant says he was paid at a flat rate of €11 per hour for all his shifts.

However, he did not receive any additional payments for working on a Sunday and was told when he raised it that it was incorporated in his existing pay.

He worked every single Sunday, which meant there were periods when he could work a number of weeks without getting a day off.

Specifically, the complainant submitted that he worked from 12am to 2pm; a fourteen hour shift. Sometimes these shifts were shorter but taking an average of twelve hours at time and a half this equates to three hundred and six hours at his rate of €11.00 per hour; a total of €3366.00.

He did not receive any annual leave or public holidays either.

In relation to public holidays he worked eight on an average shift of ten hours, therefore a total of eighty hours due at €11.00 per hour; €880.00.

He disputes that he was paid in lieu of annual leave on terminating employment and that he is due four weeks’ pay in the amount of €2174.10.

He also claimed he had only partially been paid a bonus promised by the respondent but that did not form part of the complaints.

In relation to the annual leave the complainant was asked to take the holidays that were due when he indicated, in December 2018 that he would be leaving the respondent’s employment.

By the end of this period he had still not taken two weeks, so he was paid in lieu of the leave, which is permissible on termination of the employment.

The respondent disputed at the hearing that the complainant worked every Sunday and noted that it was the complainant who drew up the roster.

In its later submission the respondent asserted that the complainant worked only twenty-eight Sundays and was not paid for some of those.

In relation to the public holidays the respondent submits that he worked only seven and received his entitlement for them. The payslips show a payment of €11.05 for eight hours for each of the seven public holidays

The respondent raised an objection on fair procedure grounds to the hearing proceeding, as it only had sight of the complainant’s submission on the day of the hearing.

Parties are only required to make submissions in advance of a hearing in a limited number of cases.

In general, and while there is no requirement to do so under WRC rules it is respectful to the other party, the Adjudicator and in the interests of justice to do so and so that all parties are in a position to understand the other’s case and make adequate preparations to respond to it.

Where this does not happen, an Adjudicator will, having regard to the complexity of the matters before him or her, facilitate an adjournment to allow a party to familiarise itself with the case it is facing.

In general, a party representative will bring themselves up to ‘case readiness’ on the basis of a short adjournment.

Only in rare cases does this require an adjournment to another day, especially where the parties are legally represented or represented by other professional advocates.

This was not such a case.

The main problem faced by the respondent on the day of the hearing was a quite shocking level of ignorance of what was going on in his own business, coupled with an almost total absence of any the obvious records which might be needed to answer a case on which he was well on notice.

It should be noted that the respondent was legally represented at the hearing, although the legal representative too was placed at the same disadvantage by the respondent’s lack of records and supporting material.

However, there is nothing in these facts to justify anything other than a short adjournment, and this was granted.

Both parties were facilitated with an opportunity to make further submissions and did so, but shed little additional light on the matters in the complaint, although the respondent used the opportunity to again raise his complaint that a breach of fair procedure arose.

I am fully satisfied that each party was facilitated in presenting its case and that the requirements of fair procedure were fully discharged.

The respondent disputed at the hearing that the complainant worked every Sunday and noted (and again in the later submission) that it was the complainant who drew up the roster but he could offer no evidence to support his contention that the complainant worked significantly less than he claimed.

Looking at the evidence adduced at the hearing the complainant says he did, in fact work fifty-two Sundays and did not receive a premium payment. The respondent submitted a payroll print out which stated that he worked twenty-eight. There is a further disparity between the hours per shift claimed to have been worked (nine by the respondent fourteen by the complainant).

The respondent also accepted that it could not initially pay a premium because it could not afford to.

The respondent claimed to have paid a Sunday Premium in respect of these hours of €0.5 per hour, which it said was ‘approved by WRC auditors’, on his basic wage of €11.00 per hour. This represents a premium of 0.05% although the respondent acknowledged that there were ‘Guidelines’ for calculating Sunday premia.

On balance I found the complainant’s evidence honest and persuasive, although I make some adjustments below for possible failings of memory.

On the other hand, the failure of the respondent to manage his affairs and maintain proper records of having done so is very damaging to his case. The maintenance of such records is also a legal responsibility, and I could place little faith in those of the respondent’s assertions that were unsubstantiated, or as in some cases only partially substantiated.

I therefore find for the complainant in respect of all three complaints.

I take account of the Labour Court decision in Chicken & Chips ltd t/a Chicken Hut and Dawid Malinowski [DWT159] regarding Sunday Premium where it stated;

“The Court considers a premium of 33% of the hourly rate is reasonable.”

This is the basis on which I will calculate the Sunday premium. In doing so I have averaged the complainant’s hours at ten and on the basis of fifty Sundays (as I think it unlikely that he worked them all) this produces an award of €1815.

I accept his calculation in relation to public holidays and again on the basis of an average shift of ten hours, giving a total of eighty hours due at €11.00 per hour; €880.00.

I also find that that he is due four weeks’ pay in the amount of €2174.10. I do not accept that various payments allegedly made by the respondent related to annual leave.

For the reasons set out above I uphold complaint CA-00023687-001 and award the complainant €1,815 in respect of his complaint regarding Sunday working, €880.00 in respect of his complaint regarding public holidays and four weeks’ pay in the amount of €2174.10 for his complaint related to annual leave.

Sunday working, annual leave, public holidays.