INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
SODEXHO IRELAND LTD
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Doherty
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioner's Recommendation IR14413/03/MR.
2. The case before the Court concerns a worker who works part-time as a catering assistant. The worker in question was asked to work additional hours during weekends, and was paid overtime rates for the extra hours. The worker then had an accident at work on the 30th April, 2002, and was out sick until 18th November, 2002. On her return she was again offered additional work at weekends but was informed that she would only be paid a flat rate of pay, as the previous overtime rates were paid to her in error.
The matter was referred to a Rights Commissioner for investigation and recommendation. His findings and recommendation issued on the 18th May, 2004, as follows:-
"Based on the evidence before me, I find that the Company's refusal to continue to pay the worker premium rates for overtime until she has worked 39 hours in a week is in breach of her terms and conditions of employment insofar as any of the overtime is worked at weekends.
The relevant Section of the document sent to me by the Company, which would appear to have broadly the same effect as the relevant Section of an earlier documentreads as follows:-
"5.2 For normal weekday day-shift workers, overtime will be paid as follows:-
5.2.1. All overtime hours in excess of 39 hours per week will be paid at the rate of time plus a half.
5. 2. 2. All overtime hours worked on a Saturday will be paid at the rate of time plus a half until midday and double time thereafter unless otherwise stated in the variations in Section 31.
5.2.3. All overtime hours worked on Sunday will be paid at the rate of double time unless otherwise stated in the variations in Section 31.
5.2.4. Other Shift systems may attract different overtime payments and when applicable these will be specified in Section 31 as a variation to contract".
The Section 31 referred to in the above text is the final Section of the document and allows for "variations to be added to an employee's terms and conditions. The relevant part of Section 31 has been left blank in the workers case.
In the letter of January, 2004, the Company has argued that 5.2.1 above shows that their response to the workers claim is correct. However, it seems to me that 5.2.1., on the one hand, and 5.2.2 and 5.2.3 on the other, are in conflict with each other unless the "in excess of 39 hours per week" in 5.2.1 is interpreted as meaning "in excess of 39 hours per week during the period Monday to Friday".
As that interpretation seems to me to be the most reasonable one in the circumstances, I find that the worker is entitled to be paid for overtime worked at weekends in accordance with 5.2.2 and 5.2.3.
On the other hand, I am satisfied that 5.2.1 allows the Company to require the worker to work 39 hours on weekdays before she becomes entitled to premium payments for any overtime worked on weekdays and I find accordingly.
As regards the other examples cited by the Company, I am not satisfied that any of them are in conflict with the other finding. In particular, the finding by the European Court of Justice that it was compatible with European Law to only pay overtime to part-time workers after full-time hours had been worked does not, in my view, necessarily imply that paying overtime after contracted hours which are less than full-time hours have been worked is incompatible with European Law.
Finally, as regards the claim for losses suffered by the worker as a result of her not working weekends, it seems to me that those losses were incurred in the first place because of her decision not to work those overtime hours. She could just as easily have decided to work the hours while taking her case to a Rights Commissioner. In the circumstances, I find that it would not be appropriate for the Company to have to pay the worker in respect of those losses.
Accordingly, I now recommend that Sodexho Ireland Ltd should accept the Union's interpretation of the workers terms and conditions of employment is correct insofar as weekend overtime is concerned. The Company should therefore agree to pay the worker for any overtime that she might work at weekends in accordance with that interpretation."
The worker was named in the Rights Commissioners Recommendation.
On the 17th June, 2004, the Union (on behalf of the worker) appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 10th November, 2004..
3. 1.Based on the contract of employment, the worker is entitled to overtime premia for weekend work irrespective of whether 39 hours have been worked or not.
2. As a result of the employers decision to deny weekend premia to the worker, she was not in a position to avail of the extra hours on a flat rate basis as the additional cost of child care would have resulted in a financial loss.
4. 1. The application of overtime rates to workers who work less than 39 hours would confer an unfair advantage in comparison to full-time employees.
2. The loss of earnings incurred by the worker were as a result of her own decision not to work the extra hours.
The Union appealed the Rights Commissioner's Recommendation on behalf of the worker, seeking compensation for the loss of overtime earnings during the period when the issue of overtime premia was in dispute with the Company.
Having considered all the circumstances surrounding the dispute, the Court recommends that a payment of €500 should be paid to the appellant in full and final compensation of the claim.
The Union's appeal is upheld and the Rights Commissioner's recommendation is varied accordingly.
The Court so decides.
Signed on behalf of the Labour Court
14th December, 2004______________________
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.