ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00050125
Parties:
| Complainant | Respondent |
Parties | Raul Hidalgolucena | Caspian Bmp Ltd |
Representatives | Service Workers Alliance | Michael Kingsley BL instructed by J.O.S Solicitors |
Complaint(s):
Act | 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 | CA-00061099-002 | 20/01/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022 | CA-00061099-009 | 20/01/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 8 of the European Communities (Working Conditions of Mobile Workers engaged in Interoperable Cross-Border Services in the Railway Sector) Regulations, 2009-SI No. 377 of | CA-00061099-010 | 20/01/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00061099-015 | 20/01/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998 | CA-00061099-017 | 20/01/2024 |
Date of Adjudication Hearing: 29/05/2025
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant was employed as a care Assistant from December 5th, 2024, to January 18th, 2025. He submitted a number of complaints directly when his employment ceased and advised the Hearing, he had very little English at the time and now understands he submitted a number of complaints under the wrong Acts or inappropriately. His Representative came on board the day before the Hearing. The Complainant, who now had reasonable English was assisted by an Interpreter at the Hearing. The Complainant withdrew a number of his complaints at the Hearing and the only issue for adjudication was the payment of a Sunday premium for working Sundays. |
Summary of Complainant’s Case:
The Complainant withdrew the following complaints at the Hearing; CA-00061099-009 CA-00061099-010 CA-00061099-015 CA-00061099-017. Under complaint number CA-00061099-002 (Organisation of Working Time Act) the Complainant alleged he worked a number of Sundays and received no Sunday premium and sought between 25% and 30% payment for the hours he worked on Sundays. |
Summary of Respondent’s Case:
The Respondent stated that they paid the Complainant a Sunday premium and this was shown in his payslip as expenses and the following amounts were paid to the Complainant; Dec 22nd 17.40 Euros Jan 15th 19.50 Euros Jan 19th 18.88 Euros |
Findings and Conclusions:
The Law; Section 14 of the Act provides: 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
The contract of employment was silent on the issue of Sunday premium payment. The use of the words “expenses” by the Respondent for the payment of a Sunday premium in the payslip caused some confusion and the Complainant was not able to identify any reason why he would have been paid expenses for the weeks he worked. However, from the payslip it is obvious the amount was taxed and therefore unlikely to be expenses as these would be non taxable. Overall, I accept the Respondents position that the amount shown as expenses was for Sunday premium (albeit how they arrived at the amounts paid shows no set logic). The Complainant asked a former colleague to give evidence that they had discussed Sunday payments and that he was not in receipt of a Sunday premium and that they had discussions about being paid a premium for Sundays. Nothing stands or falls on the Colleagues evidence. It is fairly accepted standard practice that employers pay premiums for Sunday work (as required by the legislation) however the amount paid (percentage) is not defined by the legislation and in practice varies on the circumstances of the industry and roles. As the Complainant was only in employment for a short period the amount of times he worked on a Sunday was very limited. Given the sector in this case is a very cost conscious one I find that the Respondent should pay the Complainant a premium of 25% for all hours worked (paid) on a Sunday by the Complainant and that the amount shown as expenses in the payslip be deduced from this amount and the balance be paid to the Complainant for breach of his employment rights. This is redress of compensation for a breach of a statutory right and is not remuneration or arrears of remuneration. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find in favour as outlined above for the Complainant with regard to the Sunday premium entitlement and the complaint is well founded. |
Dated: 01-07-2025
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Key Words:
Sunday Premium |