Complainant

Respondent

Parties

Jake  Quinn

J & J Retail Limited Trading as Jack & Jones

Representatives

  Self-represented

William O’Reilly RVW O'Reilly 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-00051223-001

19/06/2022

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

CA-00051223-002

19/06/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant gave his evidence under affirmation.  The respondent’s representative undertook cross examination of the complainant.

CA-00051223-001 Sunday Premia

The complainant submitted that he did not receive any additional premium in relation to 3rd, and 24th, April 1st, 8th, 22nd, and 29th of May, 5th, 12th, 19th, and 26th of June, and the 3rd, 10th, 17th, and 24th, of July 2022.  He submitted that under the legislation, he was entitled to receive a Sunday premium for those dates.

CA-00051223-002 Public Holiday entitlements

The complainant submitted that he did not receive his bank holiday entitlements in relation to March 17 and 18, April 18, and May 2. He submitted that he received a partial payment for the bank holidays in April and May, 2022.

CA-00051223-001 Sunday Premia

The respondent submitted that the complainant was paid a standard rate of payment and under his contract he was required to be flexible in his hours of attendance.

CA-00051223-002 Public Holiday entitlements

The respondent submitted that the complainant was paid the equivalent of 33.78 hours in holiday entitlements.

The complainant gave evidence that he was not a part-time worker and began work on 14 March 2022 and was let go on 28 July 2022.  This was not contested by the respondent.  He gave evidence that he did not receive a pay premium relating to work he undertook on Sundays.  He also indicated that he was not paid for public holidays on 17 & 18 March 2022 and was only part paid for work on 18 April and 2 May 2022.  He stated that he was correctly paid for 6 June 2022.  The complainant gave evidence that he worked on average 37.5 hours per week on a wage of €11 per hour.  The complainant accepted that he had received 33.78 hours in relation to holiday pay and that this included a portion in relation to Public Holiday pay.

The respondent’s representative confirmed that the respondent does not pay Sunday premia.

CA-00051223-001 Sunday Premia

Section 14(1) of the Organisation of Working Time Act, 1997 states the following:

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 accepted that the complainant worked Sunday hours and that it does not pay any form of Sunday premium.  It also accepted that the contract of employment is silent on this issue.

Having regard to the written and oral evidence submitted in relation to this complaint I find that this complaint is well founded. 

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

(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.

Having regard to the provisions of Section 27(3) of the Act, the employer is hereby required to comply with the payment of Sunday premia for all of its employees.  Having regard to the respondent’s blanket admission that it does not pay Sunday premia, in addition to the foregoing, the employer is required to pay the employee the sum of €10,725 which is equivalent to 6 months’ remuneration which I consider to be just an equitable having regard to all the circumstances.

CA-00051223-002 Public Holiday entitlements

Section 21(1) of the Organisation of Working Time Act, 1997 states that

(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

The respondent submitted that the complainant was paid 33.78 hours in respect of his holiday pay.  It was indicated that a portion of this amount related to his Public Holiday pay.  The complainant accepted that he was paid this amount.  Having regard to the written and oral evidence given by the complainant I am not satisfied that he has provided evidence that he was not paid for Public Holidays.  Accordingly, I find that this complaint is not well founded.

CA-00051223-001 Sunday Premia

Having regard to the written and oral evidence given in relation to this complaint, my decision is that the complaint is well founded.   Arising from my decision and the provisions of Section 27(3) of the Act, the employer is hereby required to comply with the payment of Sunday premia for all of its employees.  In addition to the foregoing, the employer is required to pay the employee the sum of €10,725 (equivalent to 6 months’ remuneration) which I consider to be just an equitable having regard to all the circumstances.

CA-00051223-002 Public Holiday entitlements

Having regard to the written and oral evidence in relation to this complaint, my decision is that the complaint is not well founded.

Organisation of Working Time Act – Sunday Premia – Admission of Non-payment – award of compensation – Public Holiday pay – amount paid to the comp - not well founded.