Complainant

Respondent

Parties

Jelena  Atanackovic

MCR Group Ltd

Representatives

  Self

 Geoffrey Doyle

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-00055556-001

10/03/2023

This complaint is concerned with nonpayment of Sunday Premium in 2019 and 2020. The Complainant no longer works with the Respondent. While in the employment she did raise the issue and was paid for 2021 and 2022.

While the facts of payment and non-payment are not in dispute, a preliminary issue of time limits for consideration of the complaint arises in this case.

The Complainant worked for some years with MCR as a cleaner before transferring to work in a shopping centre on a part time basis. It was there she began Sunday working. She found that she was working alongside other who were also working on Sundays but who were receiving Sunday Premium. When she raised the difference in pay, she was first told  that the others were on old contracts. Some afterwards when she raised the issue again, she was told it was because she worked part time. When she became a full-time worker, she asked again. This time she received payment but only for 2020 and 2022 when she had not worked many Sunday hours. The Complainant was not paid for 2019 and 2020 when she had worked many Sundays, and it is the premium for  these hours she is seeking payment. In 2023 all staff started asking about Sunday Premium. She said she understood that it was the law and that all workers should be treated the same. The Complainant no longer works with the Respondent.

The Respondent did not disagree with the account given by the Complainant in terms of payments made and different rates of pay at different times. . He explained that some of the employees joined MCR under a TUPE and carried with them a rate for Sunday Premium. Other employed after that date did not receive a Sunday Premium as there was nothing clear about a rate in the ERO for contract cleaning and there was nothing specified in the Organisation of Working Act which he understood to mean that even a very small amount of premium for working on  Sundays could be paid. In 2023 the Complainant raise the matter of Sunday premium and it was decided to pay her what those who transferred under the TUPE  received and to go back two years. In that period the Complainant had worked only 40 hours on Sundays, and this was the basis of the calculation over that period.

The Complainant is correct in that all of those working on a Sunday are entitled to a premium for those hours worked. The pay may be part of or in addition to the normal daily rate. That amount may be calculated by for example reference to a collective agreement or an agreed rate for an industry. The Respondent is also correct that there is no amount specified under the Employment Regulation order for Contract Cleaning and neither is there a specific amount or means of calculating the payment to be made contained in the Organisation of Working Time Act 1997. Nonetheless were this complaint submitted within the time limits set out in the Workplace Relations Act 2015, it would be open to an Adjudication Officer to decide on an appropriate rate for Sunday Working where none is paid. However, and this was explained to the Complainant the hearing, the difficulty in this case is one of time limits and whether her complaint can be considered at all.

Section 41 Workplace Relations Act 2015-subsections related to time limits for investigation complaints:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after theexpiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

As was confirmed by the Complainant in her evidence to the hearing, her complaint refers to a period well outside the time limit of six or even twelve months beginning on the day of the contravention. Any monies due to her within that period were paid by the Respondent. In the circumstances of this case, I do not have jurisdiction to entertain the complaint.

CA-00055556-001 As the complaint does not fall within the time limits set out in Section 41 of the Workplace Relations Act 2015, I cannot entertain the complaint and as such, declare it to be not well founded.

Sunday Premium/Time limit