ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027943
Parties:
| Complainant | Respondent |
Parties | Inyan Clerkin | Mange Tout Limited The Caterers |
Representatives | Self-represented | The Hr Suite |
Complaint(s):
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-00035806-001 | 22/04/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00035806-002 | 22/04/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00035806-005 | 22/04/2020 |
Date of Adjudication Hearing: 06/07/2021
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, and Section 13 of the Industrial Relations Acts 1969] following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute. On 6/7/2021 I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.
I explained the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021. The parties agreed to proceed in the knowledge that hearings are to be conducted in public, decisions issuing from the WRC will disclose the parties’ identities and sworn evidence may be required.
I gave the parties an opportunity to be heard and to present evidence relevant to the complaint.
Oral evidence was presented by both the complainant and the respondent. The parties were offered the opportunity to cross examine on the evidence submitted.
Background:
The complainant commenced employment on 25 November 2019 as a café manager. He was summarily dismissed on 18 February 2020. He worked 40 hours a week. His annual salary was €27,000. On 22 April 2020 he submitted three complaints to the WRC under the Organisation of Working Time Act, 1997. |
Summary of Complainant’s Case:
CA-00035806-001. Complaint under section 27 of the Organisation of Working Time Act, 1997 The complainant did not get rest days during the period 26 November to the 7 December 2019 in contravention of Section 13 of the Act of 1997.
CA-00035806-002. Complaint under section 27 of the Organisation of Working Time Act, 1997 The complainant did not receive any premium payments for the Sundays on which he worked.
CA-00035806-005. Complaint under section 27 of the Organisation of Working Time Act, 1997. The respondent failed to pay the complainant his public holiday entitlements. |
Summary of Respondent’s Case:
CA-00035806-001. Complaint under section 27 of the Organisation of Working Time Act, 1997 The complainant did work over the required hours in November- December, but his hours after this initial period complied with the Act. He never raised any issue about his hours. The payroll records show that on average the hours worked were in line with his contract over the bi -weekly pay period. CA-00035806-002. Complaint under section 27 of the Organisation of Working Time Act, 1997 His annual salary of €27,000 incorporated a payment for working on Sundays. The complainant never raised this issue.
CA-00035806-005. Complaint under section 27 of the Organisation of Working Time Act, 1997. The respondent submitted records demonstrating that the complaint had been paid his public holiday entitlements. |
Findings and Conclusions:
CA-00035806-001 Failure to provide the complainant with weekly rest periods. Relevant law Section 13(1) states (2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; (3) An employer may, in lieu of granting to an employee in any period of 7 days the first- mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24…….. rest period” The respondent’s own records for the 14-day period from 26 November to 10 December reveal that the complainant only got one rest period of 24 consecutive hours and not the two as stipulated in section 13 (3) of the Act I find this complaint to be well founded. I require the respondent to pay the complainant three weeks wages amounting to the sum of €1557 subject to all lawful deductions. CA-00035806-002 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,” I find that the complainant’s contract fails to identify what was payable in respect of Sunday working. Nor does it expressly provide that his salary encompasses a Sunday premium. In Viking Security Limited v Thomas Valent (DWT1489) the Labour Court stated “In practice the Court can only be satisfied that an employee has received his or her entitlement under Section 14 (1) of the Act where the element of compensation for the obligation to work on Sundays is clearly discernible from the contract of employment or from the circumstances surrounding its conclusion”. I do not find the element of compensation for working on Sundays to be clearly discernible. The respondent’s evidence reveals that the complainant worked six Sundays in the period 26 November 2019 – 18 February The Court in Viking Security Limited v Thomas Valent (DWT1489) case and in Chicken and Chips LTD T/A Chicken Hut v David Malinowski, DWT 159 measured the level of compensation for working on Sundays that was reasonable in all the circumstances at time-plus-one-third for each hour worked on a Sunday. I find the complaint to be well founded. I find that time- plus- one- third for each hour worked on a Sunday to be a reasonable level of compensation. I require the respondent to pay the complainant the sum of €208 subject to all lawful deductions for the loss of the premium. I also require the respondent to pay one week’s wages amounting to €519 for this infringement ofthe complainant’s rights under Section 14 of the Act. CA-00035806-005. Complaint under section 27 of the Organisation of Working Time Act, 1997. I find that the respondent’s uncontested records indicate that the complainant was paid his entitlements in respect of the three public holidays on which he worked. I do not find this complaint to be well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00035806-001 I find this complaint to be well founded. I require the respondent to pay the complaint three weeks’ wages amounting to the sum of €1557 subject to all lawful deductions. CA-00035806-002 I find the complaint to be well founded. I require the respondent to pay the complainant the sum of €208 subject to all lawful deductions for the loss of the premium. I also require the respondent to pay one week’s wages amounting to €519 for this infringement of the complainant’s rights under Section 14 of the Act. CA-00035806-005. Complaint under section 27 of the Organisation of Working Time Act, 1997. I do not find this complaint to be well founded. |
Dated: 13th October 2021
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Key Words:
Rest periods, Sunday premium payments. |