Complainant

Respondent

Parties

Patricia  Fitzpatrick

The Irish Wheelchair Association

Representatives

  N/A

Cathal McGreal BL instructed by Doyle Solicitors

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-00038635-001

18/06/2020

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

CA-00038635-002

18/06/2020

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

CA-00038635-003

18/06/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00038635-004

18/06/2020

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

CA-00038635-005

18/06/2020

The Complainant was employed as a Programme Assistant with the Respondent and was paid a basic rate of €15.13 per hour. She stated that the Respondent began rostering her for 21 hours per month over her 39 average working week when she started her new role in December 2017 and that she was not paid for these additional hours. 

She also stated that she was paid a Sunday premium for the hours that she worked on a Sunday from 8 am until midnight but did not receive any premium payments for the hours from midnight to 8am. 

She stated that the Respondent began rostering her for 21 hours per month over her 39 average working week when she began her new role on May 1 2018 and that she was not paid for these. Specifically, as she did 7 night shifts in every 4 weeks and she was only paid for 5 out of every eight hours that she worked between midnight and 8 am, there was a shortfall of her pay in the amount of €317.73 per month.

She stated that at a number of meetings in February and March 2020, both she and her colleagues were informed that there were going to have to be changes made to the hours they worked and how they were paid as a result of the Labour Court Recommendation (Health Service Executive & IMPACT, SIPTU and UNITE) LCR 20837. She claimed that she was informed that these changes had not been applied in the immediate aftermath of the Labour Court Recommendation because, unlike other colleagues in the organization, she was on a salary and was not hourly paid, which she disputes. These proposed changes comprised of an intention on behalf of the Respondent to change her contract to reflect that she now worked 44/45 hours per week and only pay her the minimum wage for all hours worked between midnight and 8am. The Complainant objected to these changes and became aware from these meetings that she should always have been paid for every hour that she was available on the shift even though she may have been sleeping.

She also stated that when she queried about why she was in receipt of a Sunday premium for the hours that she worked on a Sunday from 8 am until midnight but did not receive any such payments for the hours from midnight to 8am, she was informed that the Respondent only paid premium rates for the hours she worked during those shifts and not for the hours she was asleep.

The Respondent’s representative opened the Labour Court Recommendation (Health Service Executive & IMPACT, SIPTU and UNITE) LCR 20837 to me, stated that the Respondent had adhered fully to the provisions of this recommendation and did not consider that there were any payments due to the Complainant.

I note in the first instance the decisions of the Court of Justice of the European Union (formally the ECJ) which held that for the purpose of Directive 93/104/EC on the Organisation of Working Time (now Directive 2003/88/EC) time spent by workers at their place of work during which they remain liable to be called upon to perform the duties of their employment is to be regarded as working time. The Directive is transposed in Ireland by the Organisation of Working Time Act 1997.

While the Respondent highlighted the provisions of LCR 20837, wherein it is recommended that “staff should be paid an hourly rate of in respect of each hour spent on sleepover in excess of 39 hours equal to the national minimum hourly rate” it must be noted that this is only a Labour Court recommendation and is not therefore legally binding. Indeed the Court itself noted in that recommendation:

Having regard to the legislative basis under which the dispute is before it, the Court cannot and does not purport to resolve any differences between the parties concerning the interpretation of either the Directive or the Act of 1997. According, nothing in the recommendations that follow should be understood as addressing those issues or purporting to define the legal rights and duties of the parties under either the Directive or the Act.

Unlike the dispute before the Labour Court in the matter of LCR 20837 however, the complaints before me relates to the legal rights of the Complainant and whether or not: 

(i)                  the Respondent has breached the Organisation of Working Time Act by not paying her the full Sunday premium she alleges that she is entitled to

(ii)         the Respondent has breached the Payment of Wages Act 1991 by not paying her the full wages she alleges that she is entitled to     

CA-00038635-001:

THE LAW

The Organisation of Working Time Act 1997, in relevant part, states:

14.— (1) 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, or

( b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

( c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

( d) by a combination of two or more of the means referred to in the preceding paragraphs.

Application of the Law 

In relation to this complaint, I must firstly have regard to the decision of the High Court in Trinity Leisure Holdings Limited Trading as Trinity City Hotel v Sofia Kolesnik and Natalia Alfimova[2019] IEHC 654, which was an appeal on a point of law from the Labour Court.

Ms Kolesnik and Ms Alfimova, who were required to work Sundays from time to time, were paid an hourly rate of €9.53 for all hours worked. (At the time in question, this rate was above the national minimum wage then in place.) Their contracts of employment provided that their hourly rate of pay included “Sunday premium based on you getting every third Sunday off (i.e. you work two Sundays out of three)”.

The High Court found that the Labour Court had erred in law when it determined that an unqualified statement in a contract of employment to the effect that an employee’s contractual rate of pay including a Sunday premium was insufficient of itself to demonstrate compliance with section 14 of the Act in the absence of a specific statement as to what component of the hourly rate of pay constituted the Sunday premium component of an employee’s pay.

Specifically, paragraph 27 of the High Court judgment stated:

“[I]t is not correct to say that there was no evidence at all before the Labour Court as regards the question as to whether or not the rate of pay of the respondents takes account of the requirement to work on Sundays. The Labour Court had before it written evidence, in the form of the contracts of employment of the respondents. 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 thereof, in the third clause of the contract.”

Although I note the Complainant’s assertion that she was in receipt of a Sunday premium for the hours that she worked on a Sunday from 8 am until midnight but not during the hours from midnight to 8 am, I find that, in accordance with the decision of the High Court cited above, and from my examination of Section 3 of her contract of employment, which stipulates inter alia that “Your working hours will normally be worked across 24 hours Monday to Sunday, however hours may vary… Your base salary takes into consideration such circumstances and as such no additional remuneration will arise” there is no legal obligation on the Respondent to pay any Sunday premium whatsoever.

(ii) CA-00038635-005:

THE LAW

The Payment of Wages Act 1991 at Section 5, in relevant part, provides as follows:

5. (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

And

5(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The Workplace Relations Act 2015 at section 41, in relevant part, provides as follows

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. 

8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

Application of the Law

The provisions of section 5(6) of the Act were considered by MacGrath J in an appeal on a point of law from a decision of the Labour Court in the case of Marek Balans v Tesco Ireland Limited [2020] IEHC 55. In that case MacGrath J re-affirmed the proposition that, in a section 5(6) application, the first matter to be determined by the Court is what wages are properly payable under the contract of employment.

I am therefore required, having investigated this matter, to establish what wages were properly payable in accordance with her contract of employment.

While I note that the Complainant’s contract of employment states that “any hours worked above your normal working hours can be taken as paid leave”, I note that the Act, cited in relevant part above, states that “the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

I also note that although the Complainant has highlighted that she was underpaid since December 2017, the complaint was not referred to the WRC until 18 June 2020, and in the absence of any reasonable cause being presented to me that would have allowed an extension of the timeframe by a further six months, my jurisdiction is limited to the 6 month period prior to the contravention in accordance with s 41 (6) of the Workplace Relations Act cited above. Specifically, I can only examine any alleged contraventions in the six month period between 19 December 2019 and 18 June 2020.

As the Complainant was only paid for 5 out of every eight hours that she worked between midnight and 8 am and that she did seven night shifts every month, there is a shortfall of pay in the amount of €317.73 per month. This amounts to a total of €1,906.38 in the six month period between 19 December 2019 and 18 June 2020.

CA-00038635-001: The complaint is not well founded for the reasons set out above

CA-00038635-002: This complaint was withdrawn

CA-00038635-003: This complaint was withdrawn

CA-00038635-004: This complaint was withdrawn

CA-00038635-005: The complaint is well founded and the Complainant should be paid €1,906.38. This is a gross amount and is subject to taxation and the normal statutory deductions.

Payment for sleeping time; Sunday premium;