ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | A Security Officer | A Security Company |
Representatives |
|
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00030072-001 | ||
CA-00030072-002 | ||
CA-00030072-003 | ||
CA-00030072-004 | ||
CA-00030072-005 | ||
CA-00030072-006 | ||
CA-00030072-007 | ||
CA-00030072-008 | ||
CA-00030072-009 | ||
CA-00030072-010 | ||
CA-00030072-011 | ||
CA-00030072-012 | ||
CA-00030072-013 | ||
CA-00030072-014 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
These complaints were submitted to the WRC on August 1st, 2019 and, in accordance with Section 41 of the Workplace Relations Act 2015, they were assigned to me by the Director General. I conducted a hearing on October 11th, 2019 and gave the parties an opportunity to be heard and to present evidence relevant to the complaints.
The complainant was represented by Ms Natasha Hand, solicitor, assisted by Mr Richard Grogan. A director of the respondent company attended and gave evidence for the employer.
Background:
The complainant is a security officer and he joined the respondent company on September 7th, 2018, having transferred under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (TUPE). His contract of employment provides that his rate of pay in September 2018 was €11.35 per hour, in accordance with the rate specified in the Employment Regulation Order (ERO) for the Security Industry which is set out in Statutory Instrument number 231 of 2017. On June 1st, 2019, in accordance with the ERO, his rate of pay was increased to €11.65 per hour. The first complaint considered below, CA-00030072-001, is concerned with the hourly rate paid to the complainant in respect of the hours he worked on the public holiday on March 17th, 2019. The thirteen complaints from CA-00030072-002 to CA-00030072-014 are concerned with the rate paid for working on Sundays. |
CA-00030072-001
Complaint under Section 45A of the Industrial Relations Act 1946
Summary of Complainant’s Case:
In her submission at the hearing, Ms Hand referred to the ERO for the Security Industry which, at section 2(2), under the heading, “Public Holidays,” provides that the complainant’s entitlement to public holidays “shall be in accordance with the Terms of the Organisation of Working Time Act 1997.” The complainant worked for 12 hours on March 14th, 2019. He did not work on the public holiday on March 17th, and he was paid eight hours’ pay. He claims that section 22 of the Organisation of Working Time Act and Statutory Instrument number 475 of 1997 on the Organisation of Working Time (Determination of Rate of Pay for Holidays) Regulation 1997 provide that he was entitled to be paid for 12 hours, because he worked for 12 hours on March 14th and 12 hours is his normal daily shift. |
Summary of Respondent’s Case:
The respondent’s position is that eight hours’ pay is the appropriate remuneration for the public holiday on which the complainant was not required to work as part of his shift in the week in which the public holiday fell. |
Findings and Conclusions:
Working Pattern At the hearing, it was agreed between the parties that the complainant generally works 48 hours per week. Ms Hand said that on Thursday, March 14th, the complainant worked a 12-hour shift, and that this was the last day that he worked in that week. The public holiday on St Patrick’s day, March 17th, fell on a Sunday and the complainant was not rostered to work that day. The documents submitted by the complainant at the hearing show that in the 23 weeks between February 10th and July 21st, 2019, he worked on 12 Sundays. From this, it appears that he works every second Sunday. The information submitted at the hearing also shows that he generally works on the second and fourth Sunday of each month, apart from July 2019, when he worked on the first and third Sundays of the month. Pay for Public Holidays – The Legal Framework Section 21 of the Organisation of Working Time Act 1997 sets out the entitlement to public holidays: (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely - (a) a paid day off on that day, (b) a paid day off within a month of that day, (c) an additional day of annual leave, (d) an additional day’s pay: Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom. This complainant was not rostered to work on the public holiday on March 17th and the respondent decided that his entitlement to the benefit of the public holiday should be in the form of an additional day’s pay as provided for at sub-section (d) above. He received eight hours’ pay and he claims that he should have been paid for 12 hours. Statutory Instrument 475 of 1997, the Organisation of Working Time (Determination of Rate of Pay for Holidays) Regulation 1997, was drafted to deal with pay for annual leave and public holidays for employees with non-standard shifts and working hours. Section 5(1) provides that: If the employee concerned works or is normally required to work during any part of the day which is a public holiday, then- (a) in case the employee's pay is calculated wholly by reference to any of the matters referred to in Regulation 3(2) of these Regulations, the relevant rate in respect of that public holiday shall be the sum that is equal to the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) paid to the employee in respect of the normal daily hours last worked by him or her before that public holiday, (b) in any other case, the relevant rate in respect of that public holiday shall be the sum that is equal to the average daily pay (excluding any pay for overtime) of the employee calculated over- (i) the period of 13 weeks ending immediately before that public holiday, or (ii) if no time was worked by the employee during that period, the period of 13 weeks ending on the day on which time was last worked by the employee before that public holiday. Is Sunday a “Normal Working Day” for the Complainant? The issue that arises with respect to this complaint is the applicable rate of pay for the public holiday that fell on a Sunday, for an employee who works every second Sunday. In her submission, Ms Hand referred to the case of Cheshire Ireland v Gallagher and Donaghy, DT 73 and 74/2016 where the Labour Court found that a complainant who normally works three days a week on Mondays, Tuesday and Fridays was entitled to her normal remuneration for the public holidays that fell on Mondays, whereas her colleague who worked on Tuesday, Wednesday and Thursday was entitled to an average day’s pay. The case under consideration here is slightly different to the Cheshire Ireland case, because one of the complainants worked every Monday and this complainant works every second Sunday. An argument could be made that he generally doesn’t work on the middle Sunday of the month, but this would seem to be splitting hairs in relation to an issue that is relatively minor in terms of the cost of labour. For an employee who works every second Sunday, it seems to me that Sunday is a normal working day. On this basis, it is my view that the complainant is entitled to the benefit of the public holiday as set out at Regulation 5(a) of SI 457 of 1997. I find therefore, that the complainant was entitled to be paid for 12 hours in respect of the public holiday that fell on Sunday, March 17th, 2019. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have concluded that the complainant was entitled to pay for 12 hours in respect of the public holiday that fell on Sunday, March 17th. As he was paid for eight hours, I decide that the respondent is to pay the complainant compensation of €45.40, equivalent to four hours’ pay. |
CA-00030072-002 - CA-00030072-014
Complaints under Section 27 of the Organisation of Working Time Act 1997
Summary of Complainant’s Case:
At the opening of the discussion on these complaints, Ms Hand acknowledged that the second complaint listed above, CA-00030072, is a duplication of the first complaint regarding public holiday pay which has been adjudicated on above. As I have noted in the previous decision on public holiday pay, the complainant generally works two Sundays each month. In addition to his basic hourly rate which, since June 1st, 2019, is €11.65 per hour, he is paid an additional 25 cents per hour for working on Sundays, equivalent to €3.00 extra per day for a 12 hour day. Ms Hand submitted that this was not adequate and not in accordance with the objective of section 14 of the Organisation of Working Time Act which provides that employees who work on Sundays are to be paid “an allowance of such an amount as is reasonable, having regard to all the circumstances.” The complainant’s contract of employment was produced at the hearing and it contains no reference to a separate rate of pay for working on Sundays. Under the heading of “Pay,” the contract provides that: “Your wages are inclusive as a compensative rate to include, but not limited to bonus, shift, allowances, premium rates. “Your wages are paid in line with the Employment Regulation Order (ERO) S.I. 231/2017 Security Industry Joint Labour Committee.” Ms Hand said that the ERO for the Security Industry is silent on the issue of a Sunday allowance or a Sunday premium, apart from a reference to a Sunday premium contained in a schedule of information to be provided to employees transferring from one employer to another under TUPE. Ms Hand referred to the Labour Court case of Park House Hotel Limited v Edyta Wlodarcyk, DWT 24/2006. Here, the Court determined that the intention of section 14 of the Act was that an employee working who is required to work on Sundays is entitled to compensation for that obligation in the form of a benefit which he or she would not receive if they were not so obliged. In determining what amount might be considered reasonable for working on Sundays, Ms Hand cited two cases at the Labour Court, Chicken and Chips Limited trading as Chicken Hut and David Malinowski, DWT 159 and Viking Security Limited v Valent, DWT 1489. Here, the Court determined that time and one third was reasonable compensation for the workers concerned. |
Summary of Respondent’s Case:
The director who attended the hearing said that the complainant is paid an additional five cents per hour for working on Sundays because he was paid this allowance when he transferred to the respondent from his previous employer. He said that if he had joined as a new employee, he would be paid his basic rate of €11.65 per hour for Sundays and every other day. |
Findings and Conclusions:
The Legal Framework Section 14 of the Organisation of Working Time Act 1997 sets out the entitlement of employees to compensation for working on Sundays: (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. It is clear from this legislation that an employee who works on Sundays is entitled to be paid an allowance and also, that they must know the value of that allowance and the difference between their normal wages and the rate of pay that applies to Sunday working. The Complainant’s “Compensative Rate of Pay” Finding in favour of the complainant in the Park House Hotel case which was referred to by Ms Hand, the chairman, Mr Foley stated that, “… a mere assertion that the Appellant’s obligation to work on Sundays was taken into account in determining her rate of pay cannot be taken on its own, as evidence of compliance with Section 14(1) of the Act.” The complainant’s contract refers to a “compensative rate of pay,” but there is no indication what proportion of that pay is attributable to the requirement to work on Sundays. Also, the ERO for the Security Industry makes no reference to a “compensative rate” and it is my view that the current rate of €11.65 per hour is a basic rate only and is not intended to include an allowance for Sunday working. I am satisfied that this is the case because, across the industry, some employees will never be rostered to work on Sundays and those who work on Sundays will work a different number of Sundays in the year. The basic hourly rate of pay cannot accommodate this variety of circumstances. In his determination on the Park House Hotel case, the chairman referred to an earlier Labour Court decision in the case of Viking Security Limited and Thomas Valent, DWT 1489. Here, the Court found that it can “only be satisfied that an employee has obtained his or her entitlement under s 14(1) of the Act where the element of compensation for the obligation to work on Sundays is clearly discernible from the contract of employment or from the circumstances surrounding its conclusion.” The authority of the Labour Court regarding this matter carries considerable weight and I find that the respondent was in breach of section 14 of the Working Time Act in respect of the complainant’s entitlement to an allowance for working on Sundays. Conclusion In reaching a conclusion on this matter, I am cognizant of the fact that the security industry is a 24/7 operation and that Sunday working is a component of many contracts. I must also take account of the decision of the Oireachtas when enacting the 1997 legislation, to differentiate Sundays from other working days. I note also the findings of the Labour Court in the case of Viking Security and Thomas Valent where the chairman determined that a rate of time and one third was an appropriate allowance for working on Sundays in the security industry. Taking all this into account, it is my view that the respondent has contravened section 14 of the Act and that an allowance of time and one third is reasonable compensation for this complainant when he is required to work on Sundays. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have concluded that there has been a breach of section 14 of the Working Time Act in respect of the complainant’s entitlement to a Sunday allowance. I decide therefore, that in relation to all of the complaints referenced CA-00030072-003 to CA-00030072-14, the respondent is to pay the complainant compensation of €1,110. I have based this calculation on an allowance of 33% for working on 12 Sundays for 12 hours each day, €553.60, plus compensation of the same amount. I have used the June 1st 2019 rate of €11.65 as the basis for this calculation. |
Dated: 16th October 2019
Workplace Relations Commission Adjudication Officer:
Key Words:
Public holiday pay, Sunday pay |