Complainant

Respondent

Anonymised Parties

A complainant

A Bakery

Representatives

Emma Brennan Powell Brennan Solicitors

CEO 

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-00033431-001

28/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00033431-002

28/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00033431-003

28/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00033431-004

28/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00033431-005

28/12/2019

The complainant was employed with the respondent as a Retail Supervisor. He commenced employment on 28 July 2019 and received his notice on 20 November 2019. He was employed for four monthly pay periods.

CA 00033431-001 – Sunday Premium

The complainant submitted that he was not paid a Sunday premium for work he carried out. In total he worked 52 hours on Sunday over the period of his employment, he was only paid €10/hr for the first 30 hours and his basic rate of €12.80 for the remainder of the hours.

The complainant submitted that the Labour Court has set out time-and-a-third as being an appropriate rate for Sunday Premium, sought €314.08 in respect of this payment and cited two decisions in support of this contention:

DWT 159 Chicken and Chips Limited t/a Chicken Hut and David Malinowski

DWT 1489 Viking Security Limited and Valent

CA 00033431-002 – Unpaid Wages

The complainant submitted that his rate of pay was €12.80 an hour, although acknowledging that his Terms and Conditions stated, amongst other things, an hourly rate of €12 basic. The complainant submitted that he was not paid for 24 hours that he worked during the second pay period and was owed €313.60 for that period. In addition, the payment he did receive for this period had a shortfall of €39.83 and provided his bank statements to support this contention.

The complainant also submitted that he was not paid for his final pay period of 123.5 hours, amounting to €1580.80

CA 00033431-003 – Holiday Pay

The complainant submitted that he worked 697.5 hours for the respondent and had not been paid any holiday pay. He sought a figure amount to 8% of this total, i.e. €714.28

CA 00033431-004 – Public Holidays

The complainant stated that he worked during two public holidays 5 August 2019 and 28 October 2019 and was paid a basic rate for the first and not at all for the second, he is seeking €358.40 in respect of the shortfall for these holidays.

CA 00033431-005 – Unpaid Notice

The complainant submitted that he was told that he would be paid in lieu of notice but received no such payment. He submitted that his contract stated that he was entitled to four weeks’ notice and accordingly is seeking €2048.00 on the basis of four 40-hour weeks.

CA 00033431-001 – Sunday Premium

The respondent submitted that as the complainant was paid more than €10/hour he was paid for Sunday hours at his basic rate of €12 per hour.

CA 00033431-002 – Unpaid Wages

The respondent submitted that as per its Accountant the complainant is entitled to unpaid wages (including a week’s notice) of €1948.54. Furthermore, it submitted that there had been an overpayment of €0.80 per hour in the complainant’s favour and accordingly it was deducting €523.20 for the overpayment from that amount.

CA 00033431-003 – Holiday Pay

The respondent submitted that the complainant was entitled to €684.03 in relation to holiday pay.

CA 00033431-004 – Public Holidays

The respondent indicated that the complainant was entitled to €152.12 in relation to Public Holidays and that it was included in the final payslip.

CA 00033431-005 – Unpaid Notice

The respondent submitted that it had in its possession a contract signed by both parties which indicated that the complainant’s notice period was one week and that it had included an amount for this entitlement when calculating the unpaid wages due to the complainant.

At the outset, I note that the complainant submitted a note of terms and conditions signed by the respondent indicating that his basic was €12 per hour and listed various options as regards commission. At all times the respondent paid the complainant €12.80 and only raised the issue of an overpayment during the preparation for this hearing, therefore I find the complainant’s hourly rate to be €12.80 per hour.

I also note that the terms and conditions of employment state a one month notice period, and despite being given an opportunity to submit the co-signed version of the terms and conditions during an adjournment, the respondent did not do so.

I further note that the terms and conditions document did not state the number of hours in the working week. Having examined the wage slips provided by both parties, I find that over the seventeen-week period the complainant worked 39 hours per week on average.

Additionally, I note that the terms and conditions make no mention of a Sunday Premium

CA 00033431-001 – Sunday Premium

I am satisfied that the cases cited by the complainant are relevant to this case and follow the Labour Courts precedent of a payment rate of One-and-one-third as the appropriate rate for Sunday Premium rates in the instant case. I am also persuaded by the Court’s comments that “When an hourly rate is intended to reflect a requirement for Sunday working that should be identified and clearly and unequivocally specified at the time the contract of employment is concluded either in the contract itself or in the negotiations”. I find that the complaint is well founded. I find that on this basis the hourly rate for Sunday hours is €17.02 and the complainant is entitled to the difference: a shortfall of €7.02 for 30 hours during the first pay period amounting to €210.00, and a shortfall of €4.22 for the remaining 22 hours amounting to 92.84.

CA 00033431-002 – Unpaid Wages

Having considered all the written and oral submissions, I find that the complaint is well founded.   On the basis of the 128 hours noted in appropriate payslip, I find that the complainant is entitled to unpaid wages of €1,638.40 in respect of the final pay period. Additionally, on the basis of the documentary evidence provided to the Commission, I find that complainant is also entitled to the €39.83 shortfall relating to the payment of his wages during the second period (23/09/2019).

CA 00033431-003 – Holiday Pay

Having considered all the written and oral submissions, I find that the complaint is well founded.   On the basis of the payslips submitted by both parties, the hours worked by the complainant amount to 668 hours. It is settled law that holiday pay amounts to 8% of total hours worked where an employee has not been given such an entitlement. Accordingly, I find that the complainant is entitled to 53.4 hours of holiday pay amounting to €684.03 in this instance.

CA 00033431-004 – Public Holidays

Having considered all the written and oral submissions, I find that the complaint is well founded.   I note that the complainant was paid in respect of one public holiday worked, that of 5 August and that he will be paid for the second public holiday following my finding on CA 00033431-002 above, I find that the complainant is entitled to two days paid leave in respect of these public holidays at €115.20 per day, this amounts to €230.40

CA 00033431-005 – Unpaid Notice

Having considered all the written and oral submissions, I find that the complaint is well founded.   I note the differences of position by both parties as to the length of the notice period contained in the terms and conditions of employment. The respondent was instructed to make use of a 9-day adjournment to submit the alternative version of the terms and conditions document which they submitted that they had in their possession, however no such document was produced in the intervening period between the two hearing dates. Accordingly, I base my findings on the documentary evidence submitted.   As this element of the complaint is taken under the Payment of Wages Act, 1991, I find the definition of wages contained in Section 1 of that Act instructive:

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice

Accordingly, I find that the complainant is entitled to four weeks’ notice, based on an average 39-hour week, that is 4 x €499.20 = €1,996.80

CA 00033431-001 – Sunday Premium

Arising from my findings, my decision is to award the complainant €302.84

CA 00033431-002 – Unpaid Wages

Arising from my findings, my decision is to award the complainant €1,678.23

CA 00033431-003 – Holiday Pay

Arising from my findings, my decision is to award the complainant €684.03

CA 00033431-004 – Public Holidays

Arising from my findings, my decision is to award the complainant €230.40

CA 00033431-005 – Unpaid Notice

Arising from my findings, my decision is to award the complainant €1996.80

Organisation of Working Time Act, Payment of Wages Act. Well-founded complaint.