Complainant

Respondent

Anonymised Parties

An employee

Residential Support Communities Company

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-00029744-001

17/07/2019

The Complainant submitted the following complaint under the Act:

“I do not receive any compensation for working on Sundays” and “I do not receive a breakdown on any payslip for working Sundays and my rate of pay does not change for working Sundays. It appears I do not receive any compensation for working Sundays”.

The Complainant is employed as a Deputy House Co-ordinator in one of the Respondent’s support houses for persons with intellectual disabilities.  His hourly rate remains the same for all days worked. He submits that his payslip does not explain if he is compensated for working on Sundays and he claims that he should be so compensated in accordance with the Act.

The solicitor on behalf of the respondent submitted an extensive rebuttal to the claim/complaint, with legal case law quoted, summarised as follows:

Section 14 (1) of the Organisation of Working Time Act 1997 provides that:

“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”.

Subsection 14 (2) of the Organisation of Working Time Act specifies as follows:

“Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on Sunday is not specified by collective agreement.

(3) For the purposes of proceedings under part IV before a rights commissioner or the Labour Court in relation to a complaint that the section is not being complied with in relation to an employee to whom the subsection applies (the first mentioned employee), the value or the minimum value of the compensation that a collective agreement for the time being specifies shall be provided to a comparable employee in respect of his or her being required to work on Sunday shall be regarded as the value of compensation to be provided under this section to the first named employee that is reasonable having regard to all the circumstances:…

(4) Unless the fact of such a value being so specified has come to the notice of the rights commissioner or the Labour Court, as the case may be, it shall be for the person who alleges in proceedings referred to in subsection (3) that a value of compensation of the kind referred to in that subsection is specified by a collective agreement mentioned in that subsection to show that, in fact, such a value is so specified”.

The Respondent submits that in Trinity Leisure Holdings Limited t/a Trinity City Hotel v Kolesnik and another (2019 IEHC 654) (7 October 2019) Mr Justice Binchy states that :

“While a statement in contract that the rate of pay takes account of the requirement to work on Sundays may not always be conclusive, if an employee wishes to assert that the rate of pay does not do so, then, in my opinion, he/she must advance some credible evidence to rebut the express provision of the employment contract or at least so as to shift the onus of proof in the matter to the employer although he or she will have to overcome the parole evidence rule.”

He goes on to say that :

“…an employee advancing a claim under Section 14 (1) of the Act must lead some evidence to explain why he/she claims that what is stated in the contract is not correct..”

It is submitted that the Complainant has not adduced any evidence to rebut the express provision of the employment contract. In this case, there is a clear and unequivocal statement in the contract of employment that a Sunday premium is incorporated into the rate of pay. In the circumstances, the complaint must fail.

The Complainant’s contract of employment clearly states

“A Sunday premium is incorporated into your hourly rate of pay/salary should work on Sunday be required”.

While the Labour Court found in Viking Security Ltd and Thomas Valent DWT1489 :

“The question that arises in this case is whether the requirement to work on Sunday was taken into account in determining the Claimant hourly rate of €10. That rate was unilaterly determined by the employer and it is for the employer to show that at the time of its determination it contained an element intended to compensate the employee for the requirement to work on Sunday..”   this was overturned in a more recent High Court case.

The High Court judgement delivered on 7th October 2019 by Mr Justice Binchy, in the case of     Trinity Leisure Holdings Limited trading as Trinity City Hotel and Sofia Kolesnik and Natalia Alfimova referenced two essential elements to determine whether the Act has been breached or not.                 The first element is the contract of employment. Binchy J. states:

“The language used in the contracts is plain English and could not be more clear. The contracts state that the hourly rate of pay “includes your Sunday premium based on you getting every third Sunday off.” The wording is not buried in small print somewhere in the middle of the contract, but appears on the front page..   Here, in stating that the hourly rate of pay “includes your Sunday premium”, the contracts make it clear…and in executing the contracts, the respondents (employees) accept that to be the case”.

The second element relates to evidence and the onus of proof.   Binchy J. stated:

“While a statement in contract that the rate of pay takes account of the requirement to work on Sundays may not always be conclusive, if an employee wishes to assert that the rate of pay does not do so, then, in my opinion, he/she must advance some credible evidence to rebut the express provision of the employment contract or at least so as to shift the onus of proof in the matter to the employer although he or she will have to overcome the parole evidence rule….an employee advancing a claim under Section 14 (1) of the Act must lead some evidence to explain why he/she claims that what is stated in the contract is not correct..”  

Binchy J. in that case found that the Labour Court made an error of law in deciding that a clear statement made in a contract of employment signed by both parties may not be relied upon and instead must be proved in a particular way.   He stated:

“in drawing this conclusion the Labour Court in my view made an error of law. It did so firstly by ignoring the express statement in the contracts of employment of the respondents, that their hourly rate of pay includes their Sunday premium. Secondly, it did so by interpreting the Act of 1997 in such a manner as to impose an obligation on the employer either to ensure that a contract of employment is drawn up in a particular way i.e. to explain by way of breakdown any statement to the effect that an hourly rate takes into account the obligation to work on a Sunday, or, alternatively, to adduce oral testimony at the hearing of a complaint pursuant to s. 14 of the Act of 1997 in order to prove a statement agreed expressly to by an employee in his/her contract of employment”.

I find that this instant case is on all fours with the judgement of Mr Justice Binchy in that (a) there is an express term in the contract of employment and (b) no evidence was adduced by the Complainant which would support his complaint under Section 14 of the Act.   I must accept the findings of the superior court in this case and I find the Complainant’s complaint to be not well founded.

Organisation of Working Time Act 1997. Sunday working. Contractual clause.