Complainant

Respondent

Anonymised Parties

Warehouse Operative. 

Recruitment agency

Representatives

Hennessy & Perrozzi Solicitors . Mr. Anthony Slein, B.L.

IBEC   

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-00031794-001

23/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00031794-002

23/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00031794-003

23/10/2019

The complainant   submits that the respondent is in breach of the Organisation of Working Time Act, 1997 in failing to compensate him for Sunday working.

The complainant commenced employment with the respondent recruitment agency and was assigned to the Hirer on 14 January 2019 to work in their warehouse as a general operative.

His employment ceased on 18 September.

His gross weekly wage is €480, and he works 40 hours.

He submitted his complaint to the WRC on 23 October.

CA-00031794-002. Complaint under the Industrial Relations Acts.

The complainant withdrew this complaint.

CA-00031794-003.Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

The complainant withdrew this complaint.

CA-00031794-001 Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant was paid   an hourly rate of €12 for each hour worked . The respondent failed to pay him extra for Sunday. He received no compensatory time off. The respondent failed to adhere to section 14(1) of the Act of 1997.He is entitled to compensation for that failure .

The respondent states that they have met their obligations under section 14 (1) of the Act of 1997. The complainant received a composite rate of €12 per hour. This was sufficient compensation for working on a Sunday.

Given that the complaint was lodged with the WRC on 21 October, and in accordance with section 41 (6) of the Workplace Relations Act, 2015, the cognisable period for these complaints- though the validity of the complaints is contested - is 22 April until the 21 October 2019. No reasonable cause as provided for in section 41(8) exists to allow for an extension of time. The respondent relies on Cementation Skanska ( Formerly Kvaerner Cementaion) v Carroll, DWT 0388 in support of the contention that the complainant had not shown any reasonable cause for failure to submit the complaints within the statutory 6-month time limit.

CA-00031794-001. Complaint under the section 27 of the Organisation of Working Time Act 1997

Relevant Law concerning payment of a Sunday premium

Section 14 (1)(a) of the Act of 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 an amount as is reasonable having regard to all the circumstances,”

The respondent contends that €12 an hour was a composite Rate.

I have considered the complainant’s signed contract of employment. It states

“Sunday Premiums will be automatically included in the standard rate of pay unless explicitly stated in the Temporary Agency Worker assignment letter”.

The assignment letter contains no alternative provision.

I am guided by the judgement of Binchy J in Trinity Leisure Holdings Limited trading as Trinity City Hotel and Sofia Kolesnik and Natalia Alfimova (2019) IEHC 654 which overturned a Labour Court determination which had awarded Sunday premium payments based on there being no referable element of the employee’s pay attached to Sunday working. The High Court held that the express statement in a contract of employment that the hourly rate of pay includes a Sunday premium, though not conclusive, allows the employer to demonstrate compliance with section 14 ( 1) of the Act. The High Court also   rejected the argument that an employee could

“ impose an obligation on an employer either to ensure that a contract of employment is drawn up in a particular way i.e., to explain by way of a 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.

On the basis of the evidence, the complainant’s contract of employment and the above High Court decision, I find that the respondent has complied with section 14(1) of the Act of 1997.

I do not find this complaint to be well founded.

CA-00031794-001. Complaint under the section 27 of the Organisation of Working Time Act 1997

I do not find this complaint to be well founded

CA-00031794-002. Complaint under the Industrial Relations Acts.

The complainant withdrew this complaint.

CA-00031794-003.Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

The complainant withdrew this complaint.

Contract expressly provides for Sunday Premium payments.