Complainant

Respondent

Parties

Eugene  Farrell

SMS Ltd  - Secure Management Solutions Ltd

Complainant

Respondent

Representatives

Self-Represented /assisted by Ms L Farrell

Company Managers – Mr Byrne and Mr Gibney

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-00063887-001

29/05/2024

The Complaint refers to an alleged underpayment of a “proper and reasonable” Sunday Premium and a miscalculation of Bank Holiday payments.

The Employment began on the 20th June 2013 and ended on the 30th April 2024.

The rate of pay was stated to have been € 12.90 per hour gross for an average 38-hour week.

The Complainant in his Oral testimony and written Complaint form stated that he worked every Sunday and received no Premium Pay for this duty.

His basic Bank Holiday pay was 6.25 hours (x2) instead of 8 hours (x2).

He was seeking redress for the period of his employment, back to June 2013.

The Respondent Managers gave an oral Testimony supported by a lengthy written Submission and copies of Pay Slips.

The basic point was that the Complainant had been, at all times, paid in keeping with ERO SI No 424 of 2023 and SI 319 of 2024. In relation to the complaint the Respondent pointed to the WRC Time limits on Complaints as the period 6 months “reckonable period” to the complaint being lodged – 29th May 2024 back to the 29th November 2023.

Sunday Premium was paid as part of an inclusive Rate of € 12.90 – the ERO rate was €11.65 giving a top up Premium rate of €1.25 per hour. The actual rate was determined by the local factors of the Employment - a mid-sized Irish Midlands Town where all Security Contracts were very competitively tendered for by many, often small local, Security Companies.

As regards the calculation of Public Holiday pay the requirements of  Organisation of Working Time Act,1997 and SI 475 of 1997 OWT -Determination of Pay for Holidays - had been complied with.

 It was accepted that the requirements of the 2023 ERO (section 1 highlighted) regarding full written information to Employees of the basis of the Composite rate may not have been followed in full by the Employer. However, this was a Technical breach that had not impacted on the Complainant.

There are two issues in this case, Sunday “Premium” rate and Bank Holiday Pay

4:1       Sunday Premium Rate

Section 14 (1) (b) (inrelation to Sunday Premium) of the Organisation of Working Time Act,1997 states that

(b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances”.

“Reasonable” is not defined by the Act. Labour Court case law has tended to a figure in the region of 33% per hour. In Security cases the precedent is often cited as Viking Security Limited v Tomas Valentin DWT 1489 where the 33% figure was recommended by the Court.

In this case the exact Sunday Premium was never identified in writing but was taken to be approximately €1.25 per week (actual rate of € 12.90 over ERO Rate of € 11.65 = difference being €1.25) This is approximately a 10.70 % supplement.

The Respondents argued strongly that the Employment was in a small supermarket in a mid-sized rural market town in the Midlands. They argued that “Dublin / big Security company % rates” were not applicable and would simply be completely uncompetitive for any small Security operation, such as theirs, faced with severe competitive tendering for all jobs. The % quoted was the “Norm” in that part of the Irish Midlands.

Both Managers were under oath and presented as professional witnesses. There was no suggestion that their evidence was anything other than completely accurate. In the absence of a reliable wage Wage Rate survey in the district it was the only evidence to go on.

The Complainant referred to his new employment where a much higher basic Composite pay was paid with a supplement of €5:00 (approx. 34%) was paid. The Respondent replied that while they obviously did not have information on Competitor rates it was employment in a different sector of the Economy.

The Adjudication view was that “Reasonable” in this case has to be a figure of more than 10.70% but less (for Retail Industrial sector, geographic /local midlands reasons) that the 33% cited by the Court. Accordingly, a figure of 20% Sunday premium seems to be “Reasonable” i.e. a premium of € 1.50 per hour (existing premium €1.25 increased to € 1.50) based on the ERO / SI 424 of 2023 figures.

As the reference Period was 29th May 2024 back to the 29th November 2023

As the employment ended on the 30th April 2024 the increased Sunday premium has to apply to Sundays worked in the reference Period (29th May 2024 back to the 29th November 2023).

However, as the Rate of Pay was composite the Rate of Pay for the Period should be (38-hour week basis € 11.65 (ERO) by 38 = € 442.70) plus New Supplement of €1.50 to give a 38-hour rate of €499.70 

((€ 442.70 plus €1.50 X 38 = €57) = €499.70)

(For clarification the new 1st July 2024, ERO base rate (SI 319 /2024) of € 14.50, (will still attract the Premium of €1.50 unless local negotiations decide otherwise.)

4:2        Public Holiday Rate of Pay

The Respondent paid 6.5 hours by two = 13 hours for a Public Holiday.

The Complainant argued that the rate should have been 8 hours Public Holiday plus the 6.5 Hours

Rates of Pay for public Holidays are set out in SI 475 of 1977 “Organisation of Working Time (Determination of Pay for Holidays) Regulations 0f 1977.

Section 5 (1)(b) states

(b) in any other case, the relevant rate in respect of that public holiday shall be the sum of that is equal to the average Daily pay (excluding pay for overtime) of the employee calculated over –

The period of 13 weeks ending immediately before that public holiday “.

Meenan in Employment Law ,2nd edition, 2023 summarises the position.

11-66

Where an employee has varied hours of work, for example four hours on a Wednesday, seven hours on a Saturday and eight hours on a Sunday, and where the employee normally works on a public holiday, art.5(1)(a) provides the formula when the employee works on a public holiday: the employee is entitled to an extra payment of eight hours, i.e. the normal payment for working on a Sunday (the normal daily hours last worked by the employee before the Monday);

Labour Court DWT9917 of 29th July,1999 also makes this point.

In other words, the Employee is entitled to normal days’ pay plus the hours worked on the Public Holiday. In this case if the average week was 38 hours /5 = 7.6 hours plus the 6.5 on the Public \holiday the rate would be 14.1 hours as opposed to the 13 currently paid.  

(With reference to DWT 9917 above It appeared that the Sunday hours were the same as other days).

An arrears payment of 1.1 hours is accordingly due for each Public Holiday in the reference period.

(To be fair to the Respondent employer it is accepted that the issues above (Sunday premium and Public Holiday Pay) are complicated even for most experienced practitioners. No criticism can be attached to the Respondent employer in this case.)

Public Holiday Pay, Sunday Premium