Complainant

Respondent

Parties

Velimir  Eldic

Bwg Foods Uc Head Office

Representatives

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-00042061-002

19/01/2021

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

CA-00042061-003

19/01/2021

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

CA-00042325-001

04/02/2021

The complainant was employed by the respondent as a general operative from 16 March 2020.  He alleged that he had not received his paid holiday/annual leave entitlement and that he had not received his public holiday entitlement.  The respondent disputed both claims and instead contended that the complainant had been paid correctly at all times. 

Following discussion at the hearing the complainant withdrew their case (CA-00042061-002) in relation to the paid holiday/annual leave entitlement based on explanations given for pay received.  As a result, two cases remained outstanding for adjudication (CA-00042061-003) and (CA-00042325-001) alleging that the complainant was not given compensation for working on a Sunday.

CA-00042325-001:

In relation to Sunday premium pay, the complainant stated that when working on his fifth day he would normally be paid like any other working day and that he would receive nothing extra for a Sunday.  He said that he should be paid time and a half but that he was not paid that.  He confirmed that while additional payments were made to him, he did not receive clarification or explanation of what those payments related to.  He stated that when he worked a Sunday and it was his sixth day of work, his contract confirmed that he should receive double pay plus shift payment.  He confirmed that he was paid double but that he received no shift allowance, that morning staff were paid in the same way, and he stated that this issue has existed throughout his employment.  The complainant outlined that he had raised a grievance in relation to the matter and that he had spoken to his manager who had said to him that nobody had been paid the premium for about 5-6 years, though it was acknowledged that agency staff were paid.  He said that his manager advised him that he didn’t really understand what he was talking about and that he would look into it.  The complainant stated that he spoke again to his manager at year end and that he sent a document to the manager on the first week of January 2021 outlining his concerns but that he didn’t get an answer.  He stated that, as a consequence, he referred the matter to the WRC.  He stated that HR did come back to him with a response in February, the day after they received notice of the hearing from the Workplace Relations Commission. 

The complainant provided copies of documentation in relation to payments made and in relation to the company works agreement. 

CA-00042061-002:

This complaint was withdrawn on the day of the hearing.

CA-00042061-003:

In his complaint form, the complainant outlined that he had researched into his rights and entitlements in relation to public holidays and that he had noticed an incorrect calculation on payment compared to the information available on the Workplace Relations and Citizens Information Centre websites.  He outlined that his employer pays public holiday based on basic hourly rate and he pointed out that the company pays allowances and bonuses for afternoon and night shifts and that they do not include those allowances and bonuses in the calculation of public holidays to any employees including the complainant.  The complainant outlined that in his specific case he only works the night shift and that he receives an allowance of 20% of salary for working the night shift (basic hours €11.69 plus 20% allowance).  He outlined that the company never calculate the allowance of 20% when calculating his public holiday entitlement.  He also pointed out that when public holidays fall on a Friday, for example, Christmas 2020, a day on which the complainant and his colleagues did not work, the respondent only counted seven hours (the normal working Friday for his shift of 7 hours) but the law says that if an employee does not work on the holiday, salary should be calculated by the previous day which is 8 hours.  The complainant submitted that there was a lot of miscalculation of working hours and salary supplements.  He outlined that since he did not fully understand the calculation done by the respondent, he was requesting a detailed investigation from the Workplace Relation Commission. 

Evidence given by Complainant at hearing:

At hearing the complainant expanded further on his complaints in relation to the Organisation of Working Time and stated that:-

·       The respondent did not pay shift allowance in relation to public holidays regardless of whether an employee was working or off and he referenced all nine public holidays

·       This situation arose in relation to 2020 and 2021

·       He stated that when not in work on a public holiday, he was not paid shift allowance and that he believed he was still missing payment for two public holidays in the year 2021

·       The complainant thought that everything had been paid for 2022

·       He stated that when he worked a public holiday, he had a contractual entitlement to be paid double pay plus his shift allowance and he stated that he believed that this was covered in the act

CA-00042325-001 – Sunday Pay

The respondent pointed to section 14 of the Organisation of Working Time Act, part (1), which 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 … “.  The respondent submitted that rates of pay and all terms and conditions were negotiated and agreed with the Trade Union (SIPTU) – who are the sole negotiating body on behalf of employees coming within the scope of the agreement.  The respondent submitted that the outcome of those negotiations, form the works agreement for the respondent employment and that the rates of pay in the National Distribution Centre fulfil the above requirement and are in line with the industry norm.  The respondent submitted that therefore the rate of pay for Sunday work has been taken into account in the determination of pay. 

The respondent provided a copy of the works agreement and conditions of employment and a copy of the complainants’ contract of employment together with documentation in relation to payments made. 

CA-00042061-002:

This complaint was withdrawn on the day of the hearing.

CA-00042061-003

The respondent submitted that terms and conditions of employment of staff within their employ are negotiated and agreed with the Trade Union (SIPTU) who are the sole negotiating body on behalf of employees coming within the scope of the agreement.  They submitted that these negotiations form the company/works agreement and that under the company/union works agreement, “employees rostered to work on public holidays will be paid at double time basic rate of pay.  The supervisor will include either a days’ holiday in lieu of the public holiday or pay in lieu of the public holiday (based on working a full shift)”. 

The respondent submitted that in a week where the complainant worked a public holiday, he was paid for the full week, inclusive of that public holiday at basic rate with the relevant allowance for each day, with an additional eight-hour flat rate payment that same week and an additional eight-hour flat rate payment the following week.  The respondent submitted that this was effectively triple pay and far exceeds any statutory provision. 

CA-00042325-001:

This is a complaint regarding the non-payment to the complainant of a premium payment for Sunday working in breach of section 14 of the Organisation of Working Time Act, 1997.  The evidence was that the complainant worked night shift only and that he received 20% of a premium for working that night shift in accordance with the works agreement negotiated between the respondent and the relevant Trade Union.  The rate of pay and the fact that the complainant worked nights only was not in dispute between the parties.  The respondent held that the rate of pay contained in the works agreement fulfilled the terms of section 14 of the Organisation of Working Time Act, 1997, in relation to the statement that “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 … “. 

I noted that the works agreement set out the overtime rates to apply and specifically referred to overtime payment for Saturday to be at time and a half of basic pay for the first four hours and double time for any period past this.  In addition, it set down that overtime payment for Sunday will be at double time basic pay.  I noted in particular the complainants’ clarification provided at hearing that when he works a Sunday as the fifth day in his week, he does not get paid any additional pay for working the Sunday, however I noted that he stated that when he works a Sunday as the sixth day of his week, he said that his contract says that he is entitled to receive double pay on the basic hour plus shift but that he is paid double pay but no shift allowance and that this has been an issue throughout this employment. 

Section 14 (1) of the Organisation of Working Time Act is specifically clear that when an employee is required to work on a Sunday in circumstances where 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 working on the Sunday.  I noted that the complainant by his own evidence has received double pay for working a Sunday and I note that this is the provision set out in the works agreement between the respondent and the relevant trade union.  In these circumstances the provision of double pay for working overtime on a Sunday clearly meets the criteria of having otherwise been taken into account in the determination of his pay and in these circumstances, I find that the complainant has been appropriately paid for Sunday work when Sunday work is his sixth day of employment, in other words, when he has worked a Sunday as overtime within his working week. 

The complainant however also raised the complaint that he had not received any premium for a Sunday in circumstances where it was his fifth day of work within the working week.  I understand this to be where Sunday is part of his normal 39-hour week and not worked as overtime.  Having reviewed the entirety of the works agreement provided by the respondent I can find no reference to Sunday working as part of the normal 39-hour week and in these circumstances, I find that there was no evidence that the complainant was paid a premium in relation to Sundays worked when they were part of his normal working week of 39 hours.  In this context his complaint is well founded. 

CA-00042061-002:

This complaint was withdrawn on the day of the hearing.

CA-00042061-003:

Under section 21 of the Organisation of Working time Act, 1997, employers have the discretion to decide which of the four options set out in the legislation to grant to an employee in respect of a public holiday.  Employees may receive any one of the following, in line with the legislation:

·       A paid day off on the public holiday

·       A paid day off within the month of the day of the public holiday

·       An additional day of annual leave

·       An additional days’ pay

Having carefully considered the legislation, I find that those are the only four lawful options open to an employer in order to be compliant with the requirements of the Organisation of Working Time Act, 1997.  I noted that the complainants’ works agreement sets out that where an employee works on the public holiday, if they are rostered to do so, they will be paid double time at basic rate of pay and their supervisor will include either a days’ holiday in lieu of the public holiday or a pay in lieu of public holiday based on a full working shift.  In these circumstances I find the pay arrangements and time off arrangements set down by the employer in relation to working the public holiday to be correct. 

The complainant however also raised the question of payment for a public holiday when he was not working on the public holiday, and he pointed out that in these circumstances he only received a basic rate of pay.  He further pointed out that he is a continuous night worker and that as part of his normal weekly remuneration he receives 20% of basic salary for working continuous night shifts.  I noted S.I. no. 475/1997- Organisation of Working Time (Determination of pay for holidays) regulations 1997 and the setting out in that document of what constitutes a days’ pay in such circumstances.  Specifically I noted that section 4(a) of the regulation refers to the rate at which an employee is paid in respect of a day off under section 21 of the act and it outlines this in section 5 (1) (a) of the regulation to be “the relevant rate in respect of that public holiday shall be the sum that is equal to the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay from overtime) paid to the employee in respect of the normal daily hours last worked by him or her before that public holiday.” 

In the context of this regulation, it is clear that the complainant should be in receipt of the basic rate of pay plus his 20% shift allowance in respect of a day off on a public holiday and in this regard his complaint is well founded.

I noted also his allegation at hearing that when he is given a day off in respect of a public holiday it should relate to the last day he worked, which in the circumstances he described was an eight-hour day, rather than the seven-hour day which he is paid for on a paid day off.  The complainant is an employee whose working arrangements can be described as being on a fixed 39-hour week and a fixed salary and therefore this is what determines his normal weekly hours of work and also determines the normal working hours for a working day.  The provision referred to by the complainant refers to an employee in different circumstances who may not have been working for the employer immediately prior to the public holiday and in such circumstances the appropriate daily hours to equate to a public holiday is determined based on the last day of employment prior to the public holiday.  In this circumstance the respondents’ method of calculation of the daily hours of the complainant is correct. 

Section 27 (3) of the Organisation of Working Time Act, 1997, provides: “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 the circumstances, but not exceeding two years remuneration in respect of the employee's employment.

I have directed my mind to the facts of this case and have carefully considered what constitutes “just and equitable compensation within section 27 (3) (C) of the Organisation of Working Time Act, 1997, in light of the facts produced in this case.  It is evident to me that the complainant was at the loss of 20% of a shift payment on each occasion that he was rostered off on a public holiday and in those circumstances, I consider it appropriate that he receive compensation in the amount of €600.

CA-00042325-001

This complaint relates to the non-payment of Sunday premium to the complainant.  I have found this complaint to be well founded and I order the respondent to review the complainant’s roster from 16th March 2020 to establish the number of Sundays worked by the complainant which were rostered as part of his 5-day working week and to recalculate his earnings for those days based on time and a half plus a shift allowance of 20%. The difference between this amount and that already paid by the employer to be paid to the complainant within 42 days of the date of this decision.

CA-00042061-003

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 provision under schedule 6 of that Act. 

I have found that this complaint was well founded, and I direct the respondent to review its contract and its policy to align them both with the requirements of the Organisation of Working Time Act, 1997.  I also direct the respondent to pay compensation of €600 to the complainant, within 42 days of the date of this decision.

Premium pay, organisation of working time