Complainant

Respondent

Parties

Micheal Carroll

Ballylibert Limited T/A Satellite Taxis

Representatives

Aoife McCarthy Douglas Law Solicitors

Ms. Denise Mulcahy BL instructed by Edward O'Mahony & Co 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-00044472-001

03/06/2021

The Complainant commenced working as a base operator with the Respondent taxi company on 20 April 2009. His weekly hours vary between 32 and 40 hours per week. His stated pay is €412.80 gross; net €374. He submits that he does receive a Sunday premium in contravention of Section 14 of the Organisation of Working Time Act 1997 (hereinafter ‘the Act’).

The Complainant worked on Sundays for the past twelve years and has not received payment of allowance nor an increase in his rate of pay nor paid time off in lieu for working on Sundays. Given that the Complainant has always worked on Sundays and pursuant to Section 14 of the Organisation of Working Time 1997, the Complainant is entitled to the following:

(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.

The Complainant submits that it is clear from the legislation that an employee who works on Sundays is entitled to be paid an allowance and also, that they must know the value of that allowance and the difference between their normal wages and the rate of pay that applies to Sunday working. This was never provided to the Complainant.

The Complainant cites Viking Security Limited and Thomas Valent (DWT 1489). The Labour Court found in this case that it can “only be satisfied that an employee has obtained his or her entitlement under s 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.”

The Complainant contends that he has never received compensation for the obligation to work on Sundays. In evidence, he stated that his rate of pay, though different from his colleagues, was agreed from the outset and was one which he negotiated with the Respondent.  He does not recall any discussion with the Respondent on the Sunday Premium being included during those negotiations.  He understood that he got the same percentage rise on his pay over the years which the Taxi Regulator granted to taxi drivers.   

Rate of Sunday premium

The Complainant submits that an additional 30% to the Complainant’s rate is reasonable. The Complainant further cites Viking where the Labour Court determined that a rate of time and one third was an appropriate allowance for working on Sundays in the security industry, a similar type of role to that of the Complainant.

 The Respondent, relying on section 14 of the Act, contends that: (a) the potential obligation upon an employer to compensate an employee for being required to work on a Sunday firstly stems from the requirement to work on a Sunday and (b) takes effect when the fact of his having to work on Sunday has not “otherwise been taken into account”. The Respondent submits that it was at the election of the Complainant, as opposed to by the Respondent’s requirement, that he commenced working Sundays.

The Respondent contends that the rate of pay, in light of an arrangement whereby the Complainant worked Sundays and that such rate as was agreed with the Complainant, does factor in Sunday working hours. The Respondent owner gave evidence that the Complainant always wished to have Tuesday and Wednesday nights off as he was an enthusiastic bridge player and the Respondent was happy to facilitate this request on the part of the Complainant. Evidence was also given that that there are three applicable rates of pay in operation at the Respondent’s business, that pertaining to the Office Manager, the Respondent’s rate (which is higher) and a third rate (for those not working on Sundays). The Respondent owner gave evidence that when the rate of pay was set in discussions with the Complainant, it was always mentioned and understood by both sides that the Sunday Premium was included in the basic rate of pay.

Section 14 of the Organisation of Working Time 1997, the Complainant is entitled to the following:

(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.

The Complainant opened Viking Security Limited and Thomas Valent (DWT 1489) where the Court stated:

In practice the Court can only be satisfied that an employee has obtained his or her entitlement under s.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. Where 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 course of negotiations.

Where a Sunday premium is included in a Complainant's rate of pay, then some element of the employees pay must be specifically referable to the obligation to work on Sundays. Since in this case there was no written contract, the Respondent owner gave evidence that it was discussed in the initial negotiations on pay that the differentiation, which now exists, is evidence of the fact that the Complainant was paid extra for Sunday. The Complainant gave evidence that he was the most senior person there and the comparators used by the Respondent were recruited in later years with a resulting lesser rate which had no relationship to him.

The Respondent argues that it was the original requirement of the Complainant, to work Sundays and that therefore section 14 should not apply.  I conclude that the request to work Sundays was not for any perceived financial gain. Such a request does not waive his right to a Sunday Premium. The fact of the matter is that the evidence from the Respondent was of full acquiescence with this request, which suggests it suited both parties and thereby established a contractual pattern implied by conduct from which statutory rights accrued.  

In assessing the weight of the Respondents evidence where there is an absence of a written contract or other documentary evidence, I refer to  the Labour Court case of  Duesbury Limited, T/A Old Ground Hotel v. Mary Frost [DWT 1032], where the claimant gave evidence that she had become employed by the respondent, in that case in 1996, when it took over ownership of the hotel. She claimed that while employed by the previous owner, she was paid double time in respect of working on Sunday, but this was discontinued by the respondent when it took over the hotel. She claimed that the obligation to work on Sunday was not considered in her personal rate of pay.  The witness for the respondent in that case gave evidence as to her belief that the claimant’s rate of pay included consideration for working on Sundays, but she was not employed by the respondent when the claimant’s rate of pay was fixed and was not involved in fixing the same. Crucially, in that case, the evidence given on behalf of the respondent was unsupported by any documentary records or other corroborative evidence of any kind. In those circumstances, the Labour Court stated that it could not accept the evidence of the respondent as going far enough to rebut the direct evidence of the claimant. In this case the Complainant did not receive a contract of employment nor a statement of his terms of employment. In the context of the absence of such crucial documentary evidence to show an attributable element of Sunday Working on basic pay, I give more weight to the Complainants account that the setting of basic pay took no account of Sunday working.  I find the Complaint was well founded.

Having regard to all the circumstances of this case and considered what a reasonable rate may be, I require the Respondent to pay the Complainant a Sunday Premium rate at time-plus-one-third for each hour worked on a Sunday from the date of receipt of this decision.   The Respondent is further directed to pay the Complainant arrears of Sunday premium, so calculated, for each Sunday on which he worked in the six months prior to 3 June 2021, the date upon which this complaint was presented.

CA-00044472-001 Complaint seeking adjudication under section 27 of the Organisation of Working Time Act 1997:

Having regard to all the circumstances of this case and considered what a reasonable rate may be, I require the Respondent to pay the Complainant a Sunday Premium rate at time-plus-one-third for each hour worked on a Sunday from the date of receipt of this decision.   The Respondent is further directed to pay the Complainant arrears of Sunday premium, so calculated, for each Sunday on which he worked in the six months prior to 3 June 2021, the date upon which this complaint was presented.

Organisation of Working Time Act 1997, Sunday Premium.