SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
MK HUMAN RESOURCES LTD T/A TEMPLE RECRUITMENT
(REPRESENTED BY MR FRANK BEATTY, B.L., INSTRUCTED BY MCDOWELL PURCELL SOLICITORS)
- AND -
MESSRS RAFAL JACEK, TOMASZ BAL, MICHAL KUBLAK, MAREK MYJAK, MARCIN MITUSIK, JAROSLAW WALISIAK, TOMASZ PATLA AND RAFAL GOWIN
(REPRESENTED BY MR DERMOT SHEEHAN, B.L., INSTRUCTED BY O’HANRAHAN & COMPANY SOLICITORS)
Chairman: Ms Jenkinson
Employer Member: Ms Cryan
Worker Member: Mr Shanahan
1. An appeal of a Rights Commissioner's Decision No: r138058 / 138061 /131227 /131238 /138040 /138049 /131180 /131184 /138025 /138032 /131205 / 131215 /138019 /138022 /131143 /131152 /138009 /138013 /131166 /131173 /138003 /138007 /131193 /131200 /137995 /137999 /131207/131209/ 137984 /137990 /131526 /131530-Wt-13.
2. The Workers appealed the Rights Commissioner's Decision to the Labour Court on the 9th September 2014 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 5th November 2014. The following is the Determination of the Court.
This is an appeal by Mr Rafal Jacek, Mr Tomasz Bal, Mr Michal Kublak, Mr Marek Myjak, Mr Tomasz Patla, Mr Marcin Mitusik, Mr Jaroslaw Walisiak and Mr Rafal Gowin (hereafter the Complainants) against the Decision of a Rights Commissioner in their claim under the Organisation of Working Time Act 1997 against their employer, MK Human Resources t/a Temple Recruitment (hereafter the Respondent).
The complaint before the Court on appeal relates to the question of the Complainants’ entitlement to a Sunday premium in accordance with Section 14 of the Act. The Rights Commissioner found that the claim was not well-founded. The Complainants appealed to the Court.
The Respondent is an employment agency. The Complainants were assigned to work for their client Ryanair Limited at Dublin Airport as Ground Handling Agents.
Initial complaint forms were submitted through the Workplace Relations Customer Services on 7thMarch 2013 relating to seven of the Complainants and on 14thMarch 2013 in relation to Mr Tomas Bal. Further claim forms were referred on 10thSeptember 2013 alleging a similar breach of the Act in respect of the period 13thMarch 2013 to 10thSeptember 2013.
Position of the Parties
Mr Dermot Sheehan, B.L. instructed by O’Hanrahan & Company Solicitors, on behalf of the Complainants alleged that the Respondent breached Section 14 (1) of the Act by paying the same hourly rate for work performed on a Sunday as work performed on other days. He contended that the remuneration paid to the Complainants fails to distinguish between an employee who performs work on a Sunday and an employee who does no work on a Sunday.
Mr Frank Beatty, B.L. instructed by McDowell Purcell Solicitors on behalf of the Respondent contended that the obligation to work on a Sunday was taken into account in the determination of the Complainants’ rate of pay and was specifically mentioned in their contracts of employment. They were paid a premium rate over and above their basic rate of pay for working on nightshift and Sundays as required. This was identified as a premium of €1580.80 per annum, however it is paid on a weekly basis regardless of whether the Complainant was required to work on that Sunday or not.
Findings and Determination of the Court
Section 14 of the Act provides, in effect, that where the requirement to work on Sunday is not otherwise taken into account in the determination of a worker’s pay, he or she is entitled,inter alia,to the payment of an allowance of such amount as is reasonable in all the circumstances.
The Court is satisfied that the requirement to work on Sundays was taken into account in determining the Complainants’ pay.
In consequence the Court is satisfied that the Respondent did not contravene Section 14 of the Act in relation to the Complainants. Accordingly the Court upholds the Rights Commissioner’s Decision and the appeal fails.
The Court so Determines.
Signed on behalf of the Labour Court
24th November, 2014.Deputy Chairman
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.