FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MCT CATERING LIMITED CHOCOLAT - AND - AGNIESZKA DOMINIAK DIVISION : Chairman: Mr Foley Employer Member: Ms Connolly Worker Member: Mr Hall |
1. Appeal of Adjudication Officer's Decision No: ADJ-00006426.
BACKGROUND:
2. An Adjudication Officer hearing took place on 1 June 2017 and a Decision was issued on 13 June 2017.
The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 18 July 2017 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 15 November 2017. The following is the Court's Determination;
DETERMINATION:
This matter comes before the Court as an appeal of a decision of an Adjudication Officer by Ms Agnieszka Dominiak (the Appellant) in her complaint against her former employer, MCT Catering Limited (the Respondent) that she had not received a premium in respect of her Sunday working as required by the Organisation of Working Time Act, 1997 – 2015 (the Act) at Section 14. The Adjudication officer, in a decision dated 13thJune 2017, found that the Respondent had contravened the Act and decided that a premium for Sundays actually worked was appropriate in the circumstances. He awarded the sum of €325.50 in compensation.
The Case
The Appellant made a complaint to the Workplace Relations Commission on 13thDecember 2016. Her employment with the Respondent terminated on 9thNovember 2016. The Appellant was in receipt of €10.00 per hour as a Supervisor with the Respondent business. The Appellant contends that she was not in receipt of a Sunday premium in respect of her Sunday working from the date of her appointment as a Supervisor on 2ndMarch 2015 to the date of termination of her employment on 9thNovember 2016.
Position of the Appellant
The Appellant submits that the Adjudication Officer underestimated the appropriate compensation. She submitted that the Adjudication Officer should have awarded her compensation greater than €325.50.
The Law
The Act at Section 14 in relevant part provides as follows:
- 14.— (1) An employee who is required to work on a Sunday (and 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) shall be compensated by his or her employer for being required so to work by the following means, namely—
- ( a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
( b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or
( c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or
( d) by a combination of two or more of the means referred to in the preceding paragraphs
- ( a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
The Court has not had the benefit of a submission from the Respondent who did not attend the hearing of the Court.
The Act at Section 14 requires that an employer compensate an employee in respect of a requirement to work on a Sunday. No evidence has been put before the Court that the Appellant was so compensated in respect of the requirement placed upon her to work on a Sunday.
The within complaint was made to the Workplace Relations Commission on 13thDecember 2016. The Act, at Section 27(4), provides that a complaint must be made to the Workplace Relations Commission no later than six months following the date of the alleged contravention of the Act. The cognisable period for the within complaint is therefore 14thJune 2016 to the date of termination of the Appellant’s employment on 9thNovember 2016. The Adjudication Officer’s decision incorporated a finding that a premium of 25% in respect of Sunday Working was appropriate.
The Court finds that the Appellant received no compensation in respect of Sunday working between 14thJune 2016 and 9thNovember 2016.
Determination
The Court determines that the Respondent contravened the Act at Section 14 in that no compensation was paid to the Appellant in respect of Sunday working. The Court in considering the redress appropriate in the within matter has regard to the Act at Section 27 (3)(c). The Court determines that the amount of compensation which is just and equitable having regard to all of the circumstances of the within matter is €750 and the Court requires the Respondent to pay compensation in that amount to the Appellant. The decision of the Adjudication Officer is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Kevin Foley
4 December 2017______________________
MNChairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.