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FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : NOONAN SERVICES GROUP LIMITED
(REPRESENTED BY MANAGEMENT SUPPORT SERVICES (IRL) LTD) - AND - MS CECILIA CRISTINA FESTEU (REPRESENTED BY MR MARIUS MAROSAN) DIVISION :
SUBJECT: 1. An appeal of an Adjudication Officer's Decision No(s) ADJ-00023661 CA-00030202-003/004
Appeal of CA-00030202-003 This complaint relates to Sunday premium. The Complainant submits that she has not been paid a Sunday premium, as required by section 14 of the Act, since she commenced employment with the Respondent. She has directed the Court to its previous Determination in Viking Security Limited v Tomas Valent (DWT1489) in support of her claim. In that Determination the Court stated:
The Respondent, on the other hand, submits that the “20% shift rate” referred to on the Form is, in fact, “an allowance which incorporates a Sunday premium”. The Respondent states as follows in their written submission to the Court:
The Respondent has directed the Court to the decision of the High Court in Trinity Leisure Holdings Limited Trading as Trinity City Hotel v Sofia Kolesnik and Natalia Alfimova [2019] IEHC 654, an appeal on a point of law from this Court. Ms Kolesnik and Ms Alfimova, who were required to work Sundays from time to time, were paid an hourly rate of €9.53 for all hours worked.(At the time in question, this rate was above the national minimum wage then in place.) Their contracts of employment provided that their hourly rate of pay included “Sunday premium based on you getting every third Sunday off (i.e. you work two Sundays out of three)”. The High Court found that the Labour Court had erred in law when it determined that an unqualified statement in a contract of employment to the effect that an employee’s contractual rate of pay included a Sunday premium was insufficient of itself to demonstrate compliance with section 14 of the Act in the absence of a specific statement as to what component of the hourly rate of pay constituted the Sunday premium component of an employee’s pay. The Learned High Court Judge stated at paragraph 27 of the judgment:
Evidence The Complainant told the Court that she raised a query with the Respondent in relation to payment for public holidays and Sunday premium. She did so, on 1 May 2019, in an email to the site lead, Mr Kieran Fitzgerald, having first consulted with the Citizens Information Service who, it appears, advised her that she had an entitlement to additional payment for working on Sundays as the matter was not expressly addressed in her contract of employment. Mr Fitzgerald replied by email on that same date stating “… your shift allowance covers all these statutory entitlements”. Also in his evidence, he told the Court that he held a team meeting in order to address the Complainant’s query during which he explained that the 20% shift rate included payment for both public holidays and Sunday premium. He also told the Court that his understanding at the time was that the Complainant was more concerned about payment for public holidays than Sunday premium. Discussion and Decision in relation to Sunday Premium Claim Section 14(1) of the Act provides, in effect, that an employee who is required to work on a Sunday is entitled to an additional benefit in respect of that requirement where “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”. What is intended by this provision is that a worker who is obliged to work on a Sunday is entitled to compensation for that obligation in the form of a benefit which he or she would not receive it they were not so obligated. As is clear from the opening words of s.14(1), that compensation can take the form of an enhanced rate of pay over and above that which he or she would have received if the obligation to work on Sunday was not present. The Court is aware from its own knowledge and experience that the normal mode of compliance with section 14(1), in the case of hourly paid workers, is to pay a premium on the basic rate in respect of each Sunday worked. The entitlement that arises under section 14(1) of the Act is one of substance which an Adjudication Officer, and this Court on appeal, is obliged to vindicate. The facts of the within appeal can be clearly distinguished from those that applied in Trinity Leisure Holdings Limited Trading as Trinity City Hotel v Sofia Kolesnik and Natalia Alfimova [2019] IEHC 654. In that case, the High Court determined that as the employees’ contracts expressly stated that the hourly rate of pay “includes your Sunday Premium”, those contracts made it clear that the requirement to work on Sundays was included in the employees’ rate of pay, or, in the words of the Act of 1997, is “taken into account in the rate of pay of the employee”, and in executing the contracts, the employees accepted that to be the case. There is no such unambiguous analogous statement to be found in either document furnished to the Complainant in this case. Nowhere was she advised in writing that her rate of pay included Sunday premium. In fact, it is not at all apparent to the Court as to how one is to reconcile what is recorded in the Form, on the one hand, and in the Statemetn of Terms and Conditions issued to the Complainant, on the other. It follows that any ambiguity as between the Form and the Statement should be resolved in the Complainant’s favour. Furthermore, the Statement expressly provides that “Employees who work on a Sunday and who are not entitled to overtime will receive a Sunday premium at the rate of time and a third for all hours worked on that day”. There is no indication in any of the documentation furnished by either Party to the Court that the Complainant was in receipt of, or entitled to receive, overtime for work performed on a Sunday. The Court, therefore, determines that this aspect of the Complainant’s case is well-founded and affirms the decision of the Adjudication Officer such that the Complainant should be compensated for each Sunday that she worked during the six-month period prior to the date her complaint was received by the Workplace Relations Commission, at a rate of time plus one third. Appeal of CA-00030202-004 The Complainant told the Court that she had initially been very happy with her job and she believed that her employer had been very happy with her performance. In her evidence she said she believed things changed significantly after she began to raise queries about her entitlement to a Sunday premium and public holiday benefits. She identified three matters which she says illustrates her employer’s change of attitude to her: (a) Her probationary period was extended; (b) A medical certificate she presented following a period of sick leave was extensively and unnecessarily queried by the Respondent; and (c) She was assigned to work alone on many occasions for long periods of time. For example, she says she was assigned extra work, alone, in the client’s centrifuge room whereas she had previously done this work as part of a team of two. The Court notes, at this point, that the case being advanced by the Complainant on the appeal appears to have changed from that she put before the Adjudication Officer. At first instance, she alleged that she had been denied the right to be represented by her Trade Union. She cited this expressly as an example of the penalisation she says she suffered as a consequence of raising the issue of her entitlements under the Act. She did not make reference to this issue in her evidence before the Court. The Respondent’s position is that the Complainant’s probationary period was extended for an additional three months as there had been shortcomings in her performance, many of which had been raised with her prior to her raising her queries about public holiday and Sunday premium entitlements. The performance issues were successfully addressed and the Complainant was subsequently confirmed as a permanent employee. The Respondent accepts that an issue arose in July 2019 in relation to a medical certificate presented by the Complainant to explain a period of absence from the workplace. The Complainant, it submits, is required as part of her job to work in highly sterile areas on the client’s site. The Respondent is required to ensure that staff assigned to those areas do not have any contagious condition that might contaminate them. The medical certificate initially presented by the Complainant simply referred to her having an unspecified ‘medical condition. The Complainant, it submits, was therefore requested to produce a more appropriate and detailed medical certificate, which she eventually did. In response to the third alleged example of penalisation cited by the Complainant – assigned to work alone for long periods of time – Mr Fitzgerald gave detailed evidence to the Court about the nature in which cleaning work on the particular client’s site is organised. His team has a pre-determined work programme which has to be fully completed within a stated period. His role as supervisor, is to assign tasks to the members of his team in a manner that ensures all tasks are completed as efficiently as possible in the time allotted. It was Mr Fitzgerald’s evidence that all members of the team are assigned to complete certain tasks alone from time to time as part of the team-based approach he described and that the Complainant was treated no differently in this regard than other members of the team. Discussion and Decision This Court’s approach to claims of penalisation was set out in its determination in O’Neill v Toni and Guy Blackrock Limited [2010] ELR 21. Although, that case concerned a claim made under section 27 of the Safety, Health and Welfare at Work Act 2005, the Court has consistently adopted the same approach, mutatis mutandis, when considering penalisation claims brought under other statutes. The Court’s approach summarised in the following paragraph from Toni and Guy:
Having careful consideration to the Complainant’s evidence in relation to the matters listed above as (a) to (c), the Court finds that the Complainant has not established that any of the matters she complains of would not have occurred “but for” the queries she raised in relation to her entitlements to public holiday pay and Sunday premium pursuant to the Act. It follows, therefore, that this aspect of the Complainant’s case on the appeal does not succeed and the decision of the Adjudication Officer is overturned. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary. |
