DWT2311

1.Appeal of Adjudication Officer Decision No. r-154926-ir-15/r-155160-wt-15/EH.

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 26 April 2016 in accordance with section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 4 May 2023. The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Marek Bartosik (the Complainant) against an Adjudication Officer’s Decision r-155160-wt-15. The complaint was made pursuant to a contravention of the Organisation of Working Time Act 1997 (the Act).) It is his complaint that his employer Citi Bus Ltd (the Respondent) failed to pay him a Sunday premium. The Adjudication Officer held that the complaint was not well founded.

Background

The Complainant commenced employment with the Respondent on the 24^thMay 2013 and resigned from his position on the 15^thJune 2015.The Complainant submits that within the cognisable period he was not paid a Sunday premium for the Sundays that he worked. The Respondent submits that it pays a composite daily rate which includes the Sunday premium and that this is clearly stated in his contract. The complaint was lodged on the 8^thApril 2015. The cognisable period for the purpose of the Act is 9th October 2014 to 8^thApril 2015. This case is linked to UD/16/31, MWA/16/4 and CD/16/122.

Summary of Complainant’s submission and evidence

The Complainant submitted that he was not paid a Sunday premium during his employment with the Respondent. He accepts that his contract states that the daily rate is a composite rate that includes Sunday premium and that he signed that contract. It was his evidence that regardless of whether or not he worked a Sunday he received the same daily rate. He believed this to be contrary to the Act.

Summary of Respondent’s submission and evidence

The Respondent submitted that the daily rate is inclusive of a Sunday premium of 33% based on an eight-hour day. The Respondent submitted that by paying a composite rate the Complainant has certainty about the rate and there is no variation in the daily rate based on whether or not a Sunday was worked. The contract clearly states that a composite daily rate inclusive of Sunday premium will be paid and the Complainant signed the contract. The Respondent submitted that paying a composite rate inclusive of a Sunday premium is not contrary to the Act.

Discussion

A copy of the Complainant’s contract was opened to the Court which clearly stated that the Sunday premium was included in the composite rate of pay and this contract was signed by the Complainant. Mr Eamonn Heuston the Respondent’s Financial Controller gave evidence to the Court of how the composite daily rate was calculated and that it was inclusive of a 33% Sunday premium based on an eight-hour day. This evidence was not disputed by the Complainant, who also accepted that he had signed the contract.

Determination

The Court Determines that the Complainant did receive a Sunday premium as part of his composite daily rate and that there was no breach of the Act during the cognisable period.

The Decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
TH	______________________
9 June 2023	Deputy Chairman