Complainant

Respondent

Anonymised Parties

HGV Driver

Haulage Company

Representatives

  Self

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-00028774-001

30/05/2019

The complainant was employed as a HGV Driver by the respondent commencing employment in August 2017.  The complaint is in relation to the allegation that the complainant did not receive compensation for working on a Sunday.  The complainant has since left the respondent’s employment.

The complainant was issued with a Statement of Employment which specified a rate of pay of €12.50 per hour inclusive of a Sunday premium.

The complainant was not paid at this rate even though he worked every Sunday.

There was no appearance by the respondent.

As noted above the respondent failed to appear at the hearing of this complaint.  I examined the file and noted that the original address provided for the respondent on the complaint form was subsequently changed to the address of the depot at which the complainant was employed and which was listed as such in his Statement of Employment.  The complainant also provided documentary proof that this address was listed by the respondent as a contact address.  The notice of hearing was sent to this address.  I am satisfied therefore that the respondent was duly notified of the arrangements for the hearing.  I was further advised by the secretariat that no communication was received from the respondent to explain his non-attendance.

In filling in his manual complaint form the only box ticked by the complainant was the box in relation to the non-payment of compensation for working on a Sunday which is a breach of The Organisation of Working Time Act, 1997.  In his evidence the complainant stated that he had been employed as a HGV Driver by the respondent in August 2017.  His work involved driving to locations all over Ireland.  The complainant provided a copy of his Statement of Employment which included the following under the heading of Remuneration:

“Your wage is currently €12.50 ph payable weekly in arrears by credit transfer as detailed to your bank account.  Any additional hours worked will be paid at the basic rate.  Your Sunday premium is incorporated into your rate of pay.”

The complainant also submitted wage slips which illustrated that the rate of pay that the complainant received was less than the hourly rate specified in the complainant’s Statement of Employment and averaged around €11.17 per hour.  The complainant stated that he worked every Sunday.  There was nothing on the pay slips that specified a Sunday Premium.  The complainant submitted his complaint to the WRC on 30 May 2019.  The complainant has since left the employment of the respondent. The relevant statutory reference period as provided for by legislation is the 6 months prior to the filing of the complaint.

Section 14(1) of the Organisation of Working Time Act, 1997, states:

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 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 High Court in a recent judgement, Trinity Leisure Holdings ltd. t/a Trinity City Hotel v Kolesnik & oth. ,IEHC 654 (2019) considered this section and in his decision Binchy J. stated:

“Section 14(1) of the Act of 1997 imposes an obligation on employers to pay a reasonable remuneration to employees in respect of Sunday work by reference to stated criteria set out in ss. 14(1)(a)-(d), unless the requirement to work on Sundays is otherwise taken into account in the rate of pay of the employee.  Here, in stating that the hourly rate of pay “includes your Sunday premium” the contracts make it clear that the requirement to work on Sundays is included in the rate of pay of the respondents, or, in the words of the Act of 1997, is “taken into account in the rate of pay of the employee”, and in executing the contracts, the respondents accept that to be the case.”

In the case before me the contract states that the complainant’s Sunday premium is incorporated into his rate of pay.  The rate of pay referred to, however, is €12.50 per hour and it appears from the documentation before me that that rate of pay was not being applied to the complainant and that he was being paid a lesser amount.  I find therefore, on the basis of the evidence before me, that the complainant was not in receipt of the amount specified in his contract as incorporating the Sunday premium and consequently there is no evidence that the complainant has been compensated by the respondent in respect of work performed on a Sunday as provided for by the legislation.  Consequently, I find that the complaint is well founded.

Complaint No. CA-00028774-001:

For the reasons set out above I find that this complaint under the Organisation of Working Time Act, 1997, is well founded.  Having regard to the requirement for a penalty to be effective, proportionate and dissuasive I order the respondent to pay to the complainant the sum of €1.200 as compensation in this regard.

Sunday Premium     Compensation