Complainant

Respondent

Anonymised Parties

Support Worker

Healthcare Provider

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-00029237-001

22/06/2019

The Complainant commenced employment with the Respondent on 22nd May 2017. He worked 48 hours per week, for which he receives the sum of €588 in remuneration. On 22nd June 2019 the Complainant lodged a complaint under the Organisation of Working Time Act with the Commission. A hearing in relation to the same was convened and finalised on 27th January 2020.

The Complainant stated that he received the sum of €12.25 per hour. His contract states that “the salary quoted includes premium for weekends, public holidays, and/or unsocial hours”. The Complainant stated that this provision applies to all members off staff, regardless of whether they work Sundays or not. Given that some members of staff do not work Sundays and still receive this premium, he submitted that he was not being adequately compensation for Sunday work in accordance with the Act.

By response, the Respondent stated that the Complainant’s contract clearly stated that the premium he received was inclusive of Sunday premium. In support of this contention the Respondent submitted that the Complainant’s rate of pay was well in excess of the national minimum wage and that the Sunday premium was contained within the differential between minimum wage and the Complainant’s rate of pay. The Respondent further submitted that all members of staff are issued with this contract and, given the nature of the industry, all are potentially required to work on Sundays.

In support of their position the Respondent opened the recent High Court case of Trinity Leisure Holdings Limited -v- Sofia Kolesnik and Natalia Alfimova [2019] IEHC 654. They submitted this matter represents a clear authority in support of the submission that a composite hourly rate, including a Sunday premium, satisfies the Respondent’s obligations under the Act and that the present matter is effectively on “all fours” with the same.

The subject matter of this hearing has been recently considered at length in the High Court case of Trinity Leisure Holdings Limited -v- Sofia Kolesnik and Natalia Alfimova [2019] IEHC 654.

Here, Binchy J stated that,

“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”.

Regarding the burden of proof in such matters Binchy J stated 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….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..”  

In the present case, the relevant contractual provision states that “the salary quoted includes premium for weekends, public holidays and/or unsocial hours”. A number or points arise in relation to the clarity of this provision. Firstly, it does not state that the differential between the national minimum wage and the Complainant’s rate of pay relates to the premiums listed- this is an assumption made after the execution of the contract. Secondly, this provision does not expressly state that the composite rate relates to a Sunday premium at all. The reference to “weekend work”, whilst clearly including Sundays, could potentially relate to other rates also. Finally, the provision purports to combine four premiums; a Public Holiday premium, an unsociable hours premium and, as submitted by the Respondent, a Sunday premium and a premium for weekend work excluding Sunday, without any breakdown of how these premiums are calculated or what proportion of the remuneration relates to each.

Notwithstanding the lack of precision outlined above, it is also clear that any reasonable person reading the provision above would come to the conclusion that the rate of pay includes, at least in part, a premium for Sunday work. Having regard to the findings in Trinity Leisure Holdings Limited -v- Sofia Kolesnik and Natalia Alfimova [2019] IEHC 654, the lack of precision outlined above does not breach the employer’s obligation to ensure that a Sunday premium is “taken into account of the rate of pay of the employees” as stipulated by the Act.

Having regard to the foregoing, I find that the first part of the test outlined above has been satisfied and it falls to the Complainant to provide evidence as to why the provision is inapplicable. In this regard, the Complainant has submitted that other members of staff who do not work Sundays receive the same premium. Notwithstanding the fact that this was denied by the Respondent, this situation would not alter the fact that the contractual provision above was executed and agreed in good faith by both parties to this complaint. The belief that other persons that executed similar contacts do not work Sundays, for whatever reason, does not serve to render the provision obsolete. As such I do not find that the Complainant has established credible evidence that what is stated in the contract is incorrect.

Following the referral of the complaint and the hearing of the matter, Section 27 of the Organisation of Working Time Act empowers me to declare that the complaint either is or is not well founded.

Having regard to the totality of the evidence presented, I find that the matter is not well founded and consequently the Complainant’s application fails.

Sunday Premium, Composite Rate, Trinity Holdings