Complainant

Respondent

Parties

Krzysztof  Cender

Onsite Facilities Management Ltd.

Representatives

Mannix & Co. LLP

 The HR Suite

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-00049229-001

16/03/2022

The hearing was conducted remotely in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

 The Complaint Form was submitted on 16 March 2022 to the Workplace Relations Commission.

The Complainant swore an affirmation.

Ms Catherine Leen, Director, of the Respondent appeared and gave evidence on affirmation. Both parties were given an opportunity to cross examine the other side.  The Complainant’s solicitor cross examined Ms Leen and the Respondent’s representative took the opportunity to cross examine the Complainant.

Submissions were exchanged in advance of the hearing with a further letter filed by the Complainant at the hearing and furnished to the Respondent.

The parties agreed that the Complainant’s start date was 26 March 2007. He earns a weekly wage of €642 gross per week for a 39 hour week.

The Complainant, in his evidence, stated he started work in March 2007 and works every Sunday however, until this year he did not receive a Sunday premium. He stated he received a contract of employment and there was no reference to an additional payment for working on a Sunday.  Since bringing it to the attention of the Respondent in April 2022 he has since received double time on Sunday,

The Complainant gave evidence that he raised the issue of Sunday premium in 2014 following a meeting with Ms Leen and the HR representative. A letter was produced in evidence which was accepted came following this meeting. There is no reference to Sunday premium in that letter, but it was the Complainant’s evidence that it was raised orally, and he was told that he was not entitled to it. When asked by the Adjudication Officer, did he follow up with the Respondent at the time or at any time before this complaint in April 2022, about the Sunday premium he accepted he did not.

The Complainant seeks compensation for the entire duration of the period of his employment in which he worked Sunday as a normal working day.  

It was the Respondent’s evidence that due to an oversight the Complainant had not been paid an additional sum to cover his work on Sunday from his start date in March 2007. Ms Leen gave evidence that this had been rectified when it was first notified in April 2022 and the Complainant is now in receipt of double time on a Sunday.

When asked by the Adjudicator, Ms Leen gave evidence that an updated contract of employment noting the Sunday premium had not been furnished to the Complainant to reflect the adjustment.

In relation to the 2014 letter, Ms Leen gave evidence that she remembers the meeting with the Complainant and felt all his grievances were addressed in writing as per the letter. She had no recollection of any issue being raised around additional pay for Sunday.

It is of vital importance that when representatives are bringing their clients through their sworn evidence that they are not leading them through the narrative or seek to have them confirm the facts. This is contrary to the rules of evidence for examination of a witness together with a disregard for the fact the witness, not the representative has sworn an oath. The Supreme Court in Zalewski v WRC reinforced the role of the WRC and the requirement where there is a serious conflict of evidence, that evidence must be given under oath. In this case there was a conflict of evidence as regards aspects of the claim and therefore, evidence must only be given by the witnesses.

As a separate point the WRC in its prehearing correspondence, sets out a clear request for submissions and all documentation relied upon for the hearing to be filed by the parties in advance of the hearing date. It does not make for a fair or efficient hearing for any of the parties to refer to documentation at the hearing without the benefit of furnishing them to the opposing party and the Adjudicator.

Finally, the Mediation service offered by the Workplace Relation Commission is a separate service to that of Adjudication. It is voluntary and both parties agree to abide by the Code of Ethics which strongly emphasises the confidential nature of the process. Therefore, it is unacceptable for a party to set out in submissions or attempt to give evidence on what happened during mediation at an adjudication hearing. Consequently, I am not considering the submissions of the party that chose to disregard the fundamental principle of confidentiality.

Section 14 of the Organisation of Working Time Act 1997 sets out the entitlement for additional payment for employees who work on a Sunday:

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.” (emphasis added)

The High Court in Trinity Leisure Holdings Limited Trading as Trinity City Hotel v Sofia Kolesnik and Natalia Alfimova, 1 [2019] IEHC 654 dealt extensively with Section 14 of the 1997 Act. While it was noted by the Court there is no requirement to expressly set out the calculation for Sunday premium in the contract, it must be noted clearly and unambiguously that compensation is paid. It was accepted by the Respondent this was not included in his original contract nor has an updated contract with the appropriate clause been furnished to the Complainant since April 2022.

Section 27 (3) of the Act sets out the provision for redress:

(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:

(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 2 years remuneration in respect of the employee's employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

In terms of redress, it is acknowledged that the Complainant has since April 2022 been paid double time for Sundays. I find Ms Leen was very clear in her evidence. While the Complainant was at times confused in his direct evidence, it was accepted by the Respondent that he was not compensated for working on Sunday from his commencement date in March 2007 up to the date he made a complaint to the Workplace Relations Commission., the first date the Respondent states it became aware of the issue.

At all times the onus is on the Respondent employer to ensure an employee is compensated pursuant to Section 14 of the 1997 Act particularly where there was no contractual clause providing for same which is where this case can be distinguished from the judgment in Trinity Holdings. Was it not for the Complainant’s referral to the WRC would the issue or “oversight” as it was described by the Respondent have come to light.

On this basis I find the complaint is well founded.

I find the complaint is well founded and award the Complainant compensation in the sum of €16,692, that being equivalent to 6 months wages as being just and equitable in light of the fact the issue has been rectified but the Complainant worked for the Respondent for approximately 13.5 years without payment for Sunday.

I further find that the Respondent furnish the Complainant with an updated contract of employment with specific reference to Sunday premium included within 6 weeks of the date of this decision.

Organisation of Working Time Act - Sunday premium