Complainant

Respondent

Parties

Carol  Lombard

McCurragh Limited Wave

Representatives

Robert McNamara Mandate Trade Union

Rebecca Degroot Peninsula

Act

Complaint 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-00044891-001

02/07/2021

The respondent operates the Nespresso counter on a contract basis within the Arnott’s Department Store. The complainant has been employed on site since May 2018 and the respondent took over the contract by way of TUPE in June 2019.  The respondent operates a field sales and marketing agency. The complainant is employed as a coffee advisor. The rate of pay is set by the main contract holder Nespresso at the Arnott’s store. The service provider has made representations for a 25% Sunday premium, and this was not agreed to by Nespresso. The cost of any premium work must be approved by Nespresso. This complaint concerns the alleged non-compliance by the respondent to pay a premium for Sunday work. It is the respondent’s position that Sunday premium is included in the hourly rate which is a composite hourly rate. In early January 2021 the claimant queried why she wasn’t being paid a premium for Sunday work.

Section 14 of the Organisation of Working Time Act 1997 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.

In a similar case to that of the complainant, Viking Security Ltd v Valent DWT 89/2014, the Court determined that it could only be satisfied that the employee has obtained his or her entitlement in so far as that element of compensation was clearly discernible in the contract.

This was also the Court’s determination in Park House Hotel v Wlodarczyk DWT 24/2016 where it was held that an assertion that the rate had been included, was insufficient to show that the employer was compliant with section 14.

Section 14(4) states:

(4) Unless the fact of such a value being so specified has come to the notice of the rights commissioner or the Labour Court, as the case may be, it shall be for the person who alleges in proceedings referred to in subsection (3) that a value of compensation of the kind referred to in that subsection is specified by a collective agreement mentioned in that subsection to show that, in fact, such a value is so specified.

The complainant respectfully submitted that the matter of Sunday Premium within the retail sector has come to the notice of the Workplace Relations Commission and the Labour Court on many occasions, where it has been held that Time and a half is the appropriate rate for Sunday working.  In Scally v Lynch and Kelly DWT 102/2013 the Court determined where there was no collective agreement that this was the appropriate rate.  The complainant also stated that comparable employees within the Arnott’s business received time and a half for Sunday working.

The complainant refused to engage in a sham consultation process that had as its intent to force employees to accept that the composite rate explicitly compensated them for Sunday working, when it had not. The threat was a reduction in the weekly hourly rate unless they agreed to such a change. The complainant relies on Goulding Chemicals v Bolger [1977] I.R. 211, where Kenny J. held that a party who consistently opposed- such an agreement cannot be forced to be bound by it.

Section 14 of the Organisation of Working Time Act 1997 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.

The respondent stated that it was always an implied term of the contract. The hourly rate of pay is above the market rate and above what the client pays their staff. Benchmarking clearly demonstrated that employees did receive a higher rate. That higher rate provided for a premium for Sunday work that was incorporated into the hourly rate. Following on from representations made about the alleged failure of the company to apply a premium for Sunday working, it was decided to consult staff about:

1.       Retain the composite rate and to explicitly detail in the staff handbook that it incorporates a premium for Sunday working or

2.       Separate out the premium incorporated in the hourly rate and adjust the hourly rate for hours worked Monday through to Saturday and apply a premium for Sunday work.

The complainant declined to participate in this consultation process. After very extensive consultations with staff, the vast majority (14 out of 17) sought to retain the composite rate.

The fact is that the hourly rate does incorporate a payment where an employee who is required to work on a Sunday and the fact is it has been taken account of in the determination of his or her pay.

In O’Reilly v Irish Press [1937] 71. I.L.T.R. 1904 it was held that a custom and test practice would be applied where it was held that practice was so well known and would be accepted in the absence of agreement in writing.  This test is correctly relied upon by the employer.

The contract of employment with her original employer was signed on the 25th of August 2018.

The respondent took over the Nespresso account on or about June 2019. The terms and conditions of the contract continued to be applied by the new employer.

The hourly rate is detailed at section 7 of the contract and states that your current rate of pay will be a minimum of €14 per hour on the Nespresso Account with FMI.

There is no specific reference to Sunday work in the contract or that the hourly rate is a composite rate that includes the premium for Sunday work.

The complainant stated that the premium should be 1.5 times for Sunday working. The respondent had sought a premium of 1.25 times from Nespresso and were unsuccessful in negotiating that rate.

In the absence of any reference in the contract to Sunday work and to a term that the rate of pay incorporates a Sunday work premium; it cannot be inferred from the fact that the hourly rate is above average that it implies that it incorporates a premium for Sunday work. In fact, the contract states the €14 will be the minimum paid per hour. On the evidence there is not a practice so well known that arising from the higher hourly rate an implied term exists, and the employees have accepted this as so. If that was held it would undermine the intent and purpose of the Organisation Working Time Act to compensate employees appropriately for Sunday working. No evidence was presented that confirms that assertion.

The Act is clear that an allowance, time off or an adjustment in the hourly rate or a combination of 2 or more of the means to compensate for Sunday work should be paid where that day has not otherwise been taken account of in the determination of his or her pay. There is no evidence to support the proposition that the rate in fact does take account of Sunday work. In these circumstances the employee is entitled to the appropriate means as set out in the Act.

Allowing for the facts of this case section 14(4) is relevant in so far as the Workplace Relations Commission is familiar with a value or the complainant refers to a collective agreement that is relevant to determining a value for Sunday work.

The complainant has not agreed to her terms being changed as part of the referenced new collective agreement with employees, where the hourly rate expressly refers to it including a value for Sunday work. Therefore, she is not bound by that agreement.

Does that agreement inform the value that should be paid for Sunday work? Or should the collective agreement for another group of workers inform the value that should be paid for Sunday work; albeit the hourly rate is lower than the complainant’s. I note the recent Arnott’s collective agreement that states:

A number of changes to the terms and conditions of new team members only, were also agreed as part of this proposal as follows:

. Sunday Premium will be paid to all new team members at time and a quarter, on

commencement, rising to time and a half on successful completion of their probation

period.

A review of Labour Court recommendations concerning the value to be paid for Sunday working in the retail sector does support the complainant’s position that the premium paid to retail workers for Sunday work is 1.5 times. As the premium of 1.5 times has come to the notice of this Adjudication Officer and confirmed in Labour Court recommendations; I determine that 1.5 times the hourly rate is the value appropriate to be paid in this case.

The respondent employer references the complainant statement that:

“I know that the WRC will award financial loss backdated 6months before the claim was lodged with them. But we were on lockdown for the 6 months immediately before the claim was lodged so hence, I didn't work.”

Section 27(3) of the Organisation of Working Time Act 1997(Act) states:

(3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’ s employment.

I declare that the complaint is well founded.

The complainant is required to comply with section 14 of the Act, and I determine that she shall be compensated by her employer for being required so to work (on Sunday) by the following means, namely—

·       the value to be paid for Sunday work shall be 1.5 time of the current hourly rate which was €14 per hour at the date of the referral

As the complainant has incurred no financial loss during the relevant six months as the franchise was closed due to Covid restrictions, no award is made for loss.

The respondent has failed to comply with the Act and pursuant to 27(c) I award €1008 in compensation. The complainant works 12 hours per week. Based on an hourly rate of €14, I award 6 weeks compensation for failing to comply with the Act which is €1008.

Section 27(3) of the Organisation of Working Time Act 1997 states:

(3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’ s employment.

I declare that the complaint is well founded as the employer asserts that the employee is required to work a Sunday based on a €14 hourly composite rate, absent of a contractual right to do so, without any additional compensation as required by section 14 of the Act and that contravention continues.

The complainant is required to comply with section 14 of the Act, and I determine that she shall be compensated by her employer for being required so to work (on Sunday) by the following means, namely—

·       the value to be paid for Sunday work shall be 1.5 time of the current hourly rate which was €14 per hour at the date of the referral

As the complainant has incurred no financial loss during the relevant six months as the franchise was closed due to Covid restrictions, no award is made for loss. However, the respondent does accept that Sunday work has been paid based on an implied term that the premium for Sunday work is incorporated into a composite rate and that practice continues. As there is no such implied contractual term the contravention also continues.

The respondent has failed to comply with the Act by requiring the employee to work a Sunday, absent of any contractual right to do so, and without applying the appropriate means of compensation as set out at section 14. Pursuant to 27(c) I award €1008 in compensation. The complainant works 12 hours per week. Based on an hourly rate of €14, I award 6 weeks compensation for failing to comply with the Act which is €1008.

Sunday Work