ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00007898
A Commis Chef
Mr Patrick Toye, IBEC
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
Date of Adjudication Hearing: 30/06/2017
Workplace Relations Commission Adjudication Officer: Gerry Rooney
Location of Hearing: Room G.05 Lansdowne House
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 27 of the Organisation of Working Time Act 1997, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant was employed as a Commis Chef from 15th June 2015 until 10th April 2017. He was paid a gross wage of €9.59 per hour for an average 40 hours working week, and where he was required to work on Sundays but he complained that he was not in receipt of a Sunday premium.
Summary of Complainant’s Case:
The Complainant maintained that he was not paid a Sunday premium when he worked on Sundays prior to January 2017. He outlined that the layout of his payslip changed in January 2017 and from that point onwards his pay was differentiated between Monday to Saturday working and a separate and higher rate of pay was identified for Sunday working.
The Complainant contended that prior to January 2017 he had raised his concerns to management that he was not in receipt of Sunday premium pay and that he had confirmed with other staff members that they were on the same rate of pay as him but they did not work on Sunday.
He therefore maintained that he had not received a Sunday premium when he worked Sunday’s, and that he was seeking to be compensated for not being paid Sunday premium.
Summary of Respondent’s Case:
The Respondent refuted that the Complainant had not been in receipt of Sunday Premium payments.
The Respondent acknowledged that it received an undated letter from the Complainant in 2016 referring to the Respondent’s obligations to pay Sunday premiums under the Organisation of Working Time Act 1997.
The Respondent maintained that its HR manager subsequently wrote to the Complainant on 18th July 2016 stating that his rate of pay at €9.59 per hour included a Sunday premium advising that the Complainant’s hourly rate of €9.59 was above the national minimum wage, this was indicated in his contract of employment, and he was in fact provided with a premium hourly rate for being required to work on a Sunday. The Respondent maintains that the Complainant did not raise an issue about this again until February 2017, and at a further meeting in March 2017 it was explained to him that his contract of employment did include a premium for being required to work on Sundays.
The Respondent acknowledged that on 1st January 2017 it issued a letter to all employees regarding Sunday premium payments. In this letter the Respondent referred to the fact that all minimum wage employees were in receipt of a composite rate of €9.59 per hour which was above the minimum wage, and where it advised all staff that this hourly rate of pay would have included a Sunday premium. In the January 2017 letter the Respondent advised that it was now separating the identification of the Sunday premium on its payroll and applied a 10% premium on the composite rate of pay for those who were required to work on a Sunday. The Respondent maintained that it always paid a Sunday premium to minimum wage employees based on the composite rate. Therefore those staff on minimum wage that were required to work Sundays were compensated within this composite rate which brought them over the minimum wage rate by way of a premium for working Sundays. In order to clarify maters from January 2017 the Respondent decided it would be unfair to penalise all minimum wage staff who may not have actually worked Sunday and therefore it increased the Sunday premium to €10.55 for those actually working on a Sunday. The Complainants pay slip from January 2017 clearly showed this.
The Respondent argued that in accordance with section 14(1) of the Organisation of Working Time Act, 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 into account of in the determination of his or her pay) should be compensated by his or her employer for being required so to work by the following means, namely…- (b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances. The Respondent therefore argued that the Complainant was always paid a premium above the minimum wage of €9.15 per hour for being required to work on Sunday.
The Respondent referred to Paul Fitzpatrick t/a the Morgan Hotel and Jamila Riecka (DWT1523) which stated that Sunday premium takes effect only where the fact of the employee being required to work on Sunday is not otherwise taken into account in determining his or her pay. In this case the Respondent argued that the Labour Court was satisfied that the fact of the Complainant having to work on Sundays was taken into account in determining pay a sit was highlighted on her contract of employment, and therefore found that the Respondent did not contravene section 14 of the Act. In this regard the Respondent argued that in the within case it was more than reasonable having regard to all the circumstances, as it was paying the Complainant over an above the minimum wage and this was stated in his contract of employment. The Respondent therefore maintained it met its obligations in paying the Complainant a Sunday premium.
Furthermore the Respondent argued that should the Adjudication find in favour of the Complainant that, as the complaint was presented to the WRC on 31st March 2017, the cognisant period for the purposes of calculating the premium should run from 1st October 2016 as the Act states in section 24 that the Adjudicator shall not entertain a complaint under this section if it is presented… after the expiration of a period of 6 months beginning on the date of the contravention to which the complaint relates. In this regard the Respondent referred to C&F Tooling Ltd v Jason Cunniffe (DTW 15125) where the Labour Court upheld the six month period from a claim being presented to the Rights Commissioner as the cognisant reference period for compensation. The Respondent therefore argued that should it be in breach of the Act, the Sunday hours worked by the complainant over this period amounts to 88 hours.
Findings and Conclusions:
Based on the evidence presented I am satisfied that the Complainant’s contract did refer to him being paid €9.59 per hour, where his contract stated that this is above the then minimum wage of €8.65 per hour, and is inclusive of a premium for Sunday working. From January 2017 the Complainant’s payment for Sunday working was increased to €10.55 per hour. However evidence presented at the hearing, and confirmed by the Respondent, indicated that a number of staff who do not work on a Sunday were on the same wage and composite calculation as the Complainant up to January 2017. Therefore considering all the circumstances it is reasonable to conclude that before January 2017 the Complainant was not in fact in receipt of a Sunday premium when compared to those employees who did not work a Sunday. I therefore declare that the Complaint is well founded.
With reference to the jurisprudence referred to by the Respondent in DTW 125/2015, the Labour Court did not specify a six month period in is determination. Rather the Court referred to an award that should be fair and equitable in all the circumstances of the case. (The Respondent has also referred to Sec27 (4) of the Act, however this section had been repealed by the Workplace Relations Act 2015 (16/2015), s. 8(1) and sch. 2 part 1 ref. 10,S.I. No. 410 of 2015).
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions that Act.
As I have found the complaint is well founded I require the Respondent to pay to the Complainant compensation of €300 net after any lawful deductions. This award is by way of compensation due to his loss, on an average, of working circa 176 hours per year on a Sunday. The Respondent maintained a 10% per hour premium applies for Sunday work which it advised it was applying to those who worked on Sunday. In making this decision consideration is also given to the fact that the Complainant raised his concerns in writing sometime in or around July 2016, and on the balance of probability informally raised it with management before that date but the Respondent did not address the matter until January 2017.
Dated: 26th July 2017
Workplace Relations Commission Adjudication Officer: Gerry Rooney