Complainant

Respondent

Anonymised Parties

An AML Fraud Administrator

An agency

Representatives

None

IBEC

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-00022092-001

23/09/2018

The complainant’s employment commenced on 12 September 2017 and he worked for the respondent for 12 months. He worked weekends and was paid €12.91 per hour. Week day staff would sometimes also work at the weekend. He believed that they were paid €12.91 during the week, but paid time and half on a Saturday and paid double-time on a Sunday. This demonstrated that there was a Sunday premium for some staff, but he was not paid a Sunday premium.

With respect of reasonable cause, the complainant said that a manager told him not to submit the double-time claim. He later started submitting the double-time sheets in or around August 2018. The respondent asked for more time to talk to the client. The maximum 12-month period should apply.

In reply to the respondent, the complainant said that the minimum rate of pay is irrelevant. He was told not to enter his hours as double-time, so the limitation period should be extended.

The respondent outlined that the rate of pay was inclusive of a Sunday premium. The complainant worked 22 hours per week including Sundays. There was a threshold of 35 hours per week before he would be entitled to overtime rates. The respondent indicated on the 31 August that it would not pay an additional Sunday premium. The respondent submitted that the six-month limitation period applied.

CA-00022092-001

The complaint was referred to the Workplace Relations Commission on 23 September 2018. The complainant worked for the respondent on a one-year fixed term contract, commencing on 12 September 2017 and ending on 12 September 2018. He worked 22 hours per week, 11 hours on a Saturday and 11 hours on a Sunday. The respondent is an agency providing staff in financial services, in this case to a bank.

The complainant was paid €12.91 per hour. His case is that weekday staff who work a Sunday receive double-time. He states that the respondent, therefore, pays a Sunday premium of €6.46 per hour. He worked (or was on paid annual leave) for 41 Sundays and claims redress for the shortfall in a Sunday premium. The respondent states that the complainant is not entitled to claim over-time as he did not work over 35 hours in a week. The respondent submits that, taking the (then) national minimum wage as a base, the complainant was paid a Sunday premium of 50%.

The parties differed as to whether the complainant had reasonable cause to extend the

limitation period beyond six-months provided by the Organisation of Working Time Act. I find that the complainant is not entitled to extend time. While he engaged internally to resolve the issue, such engagement does not extend the limitation period. The reckonable period is therefore 13 March to 12 September 2018.

As opened at the adjudication, the Labour Court in Viking Security v Valent DWT 1489 held

“Section 14(1) of the Act provides, in effect, that an employee who is required to work on a Sunday is entitled to an additional benefit in respect of that requirement where “Section 14(1) of the Act provides, in effect, that an employee who is required to work on a Sunday is entitled to an additional benefit in respect of that requirement where “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”. What is intended by this provision is that a worker who is obliged to work on a Sunday is entitled to compensation for that obligation in the form of a benefit which he or she would not receive it they were not so obligated. As is clear from the opening words of s.14(1), in brackets, that compensation can take the form of an enhanced rate of pay over and above that which he or she would have received if the obligation to work on Sunday was not present. Not only must an additional benefit be provided but that benefit must be reasonable in all the circumstances. That entitlement is one of substance which a Rights Commissioner, and this Court on appeal, is obliged to vindicate.”

The contract provides that the complainant received €12.91 per hour, paid monthly in arrears. There is no mention of Sunday working in the contract. Section 14 of the Act provides that, as a matter of Irish law, work on a Sunday attracts an additional premium, i.e. a payment in addition to basic hourly pay. The basic hourly pay in this instance is €12.91. I apply a Sunday premium rate of 25%, leading to a Sunday rate of pay of €16.13 (a premium of €3.23). This tallies with the Sunday premium paid to week-day staff, whose double-time on a Sunday is made up of 25% extra paid as overtime (and also paid on Saturdays) and the additional 25% paid for Sundays. I calculate that over the 26 Sundays in the limitation period, the complainant incurred a shortfall of €923.

CA-00022092-001

I find that the complaint pursuant to the Organisation of Working Time Act is well founded and the respondent shall pay the complainant redress of €923 for the breach of a statutory right.

Organisation of Working Time Act / Sunday premium

Viking Security v Valent DWT 1489