Complainant

Respondent

Anonymised Parties

An Officer

A Public Body

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-00029847-001

24/07/2019

The Complainant applied for a position as an Officer at a scale.

The competition booklet for the position as Officer said this position attracts a 25% shift allowance based on a 365 24/7 basis, to include working every second Sunday and Public Holidays. A separate premium payment of 20% for non-rostered public holidays and 28% for rostered public holidays was included in the booklet. There was no mention of Sunday payment nor percentage of salary/shift allowance payable that covered Sunday work.

The Complainant commenced work as an Officer on 20th March 2017. After training the Complainant began working on a shift pattern and was paid 25% allowance. There is no mention of Sunday premium payments in his contract of employment.

The Complainant relies on the decision in ADJ-00020196 in favour of another colleague which found the Complainant was not in receipt of Sunday premium. He also relies on Ballinalard Transport Ltd v Gonczi DWT 1368 and Viking Security v Tomas Valent DWT 1359.

The Respondent disputes any breach of the Act. It says the Complainant was given a copy of a booklet for candidates which included a sample work roster which outlined that he would be expected to work every second weekend.

The Complainant’s contract of employment specifies he must work seven 12 hour shifts over a 14 day period which requires him to work every second Sunday. The Respondent says the 25% shift premia which requires Sunday working compensates for Sunday working. It was agreed to by the Trade Unions on that basis. The Respondent submits the Complainant does not have a legal right to more favourable treatment and terms than provided for on the contract he accepted.

The Respondent relies on S14 of the Organisation of Working Time Act 1997 which provides an additional allowance or premia for working on a Sunday is not mandated by the Act if the fact of Sunday working has already been taken into account in fixing an employee’s rate of pay. The Complainant never raised an issue with his pay prior to lodging his complaint to the Workplace Relations Commission.

The Respondent relies on Group 4 Securitas v SIPTU DWT996 and submits that S14 of the Organisation of Working Time Act 1997 cannot be used to secure an increased premium where an agreement already exists in relation to that specific employment.

I have considered carefully the written and oral submissions of the parties.

S14 of the Organisation of Working Time Act 1997 provides where an employee is required to work on an Sunday (and the fact of his having to work on that day has not otherwise been taken account of in the determination of his pay) the employee shall be compensated by his employer by the payment of an allowance as is reasonable having regard to all the circumstances, or by increasing the employee’s rate of pay by such amount that is reasonable having regard to all the circumstances or granting the employee such paid time off as is reasonable having regard to all the circumstances or a combination of the above.

The onus of proof lies on the employer to demonstrate compliance with S14 of the Act.

In order to demonstrate compliance with S14 of the Act, it is for the Respondent to show that the hourly rate contains an element intended to compensate the Complainant for the requirement to work on Sunday. This must be clearly discernible from the contract of employment or the circumstances surrounding the conclusion of the contract of employment as stated by the Labour Court Viking Security Ltd v Valent, DWT1489.

The Complainant was aware on taking the role that it attracts a 25% shift allowance based on a 365 24/7 basis, to include working every second Sunday and Public Holidays from the competition booklet. However, the Complainant’s contract of employment does not specify any provision for payment for Sunday work. The Complainant is not a member of the Trade Unions who were involved in negotiations in relation to the terms of the Officer role which were negotiated collectively. The Respondent says the increased shift allowance negotiated with the Trade Unions incorporates the Sunday premium and the Complainant is well aware of this.

The Complainant complains that he was not paid a Sunday premium since taking up the role in 2017. The applicable time-period for consideration is set out in S41 (6) of the Workplace Relations Act 2015 that an Adjudication Officer shall not entertain a complaint referred to her if it has been presented after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. The Complainant claims a sum of €1,617.93 for a six month period.

I find the Respondent has not satisfied the requirement of S14 of the Organisation of Working Time Act 1997 in either the Complainant’s contract of employment or the circumstances surrounding the conclusion of the Complainant’s contract of employment in accordance with the Labour Court decision of Viking Security Ltd v Valent DWT1489. I have taken into account the decision of my colleague in ADJ-00020196 in similar circumstances. The Complainant although not a member of the Trade Unions benefits from the negotiations by Trade Unions for their Officer members. I find the complaint is well founded and in the circumstances award a sum of 500 euro compensation to the Complainant.

I find the complaint is well founded and award a sum of 500 euro compensation to the Complainant.

Sunday premium, negotiations to incorporate Sunday premium into allowance, failure to refer to payment of Sunday premium in contract of employment