Complainant

Respondent

Parties

Maciej Kowalkowski

Assured Personnel Limited

Representatives

Self-represented

 Peninsula Business Services Ireland

Act

Complaint 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-00068955-001

31/01/2025

The respondent provides providing staffing solutions to companies in the motor, logistics, warehousing and aviation sectors.  The complainant joined the company in September 2021.  He started as a valeter and driver, valeting cars at the depot of Enterprise Car Hire in Galway.  His starting rate of pay was €12.00 per hour.

The complainant’s case is that, in contravention of s.14 of the Organisation of Working Time Act 1997, he was not paid a Sunday allowance.  A statement of the terms and conditions issued to him at the commencement of his employment states,

“If you are hourly paid, your hourly rate reflects the possibility of you working on a Sunday.”

In September 2021, the national minimum wage was €10.20 per hour.

In October 2023, the respondent got a contract to instal “black box” technology in cars to record the start, finish and distance of journeys and the speed of driving.  In his submission, the complainant said that he “happily took” this engineering work and his hourly rate was increased to €14.50.  When the contract ended a year later, in October 2024, the complainant said that he agreed to go back to his former job of valeting and driving and he remained on €14.50 per hour.  At that stage, the minimum wage was €12.70 per hour. 

The complainant said that he became unhappy in his job when the engineering work ended, although he said that his manager assured him that he was making strenuous efforts to win another contract similar to the Black box work.

The complainant said that, in the past, when he worked on Sundays, he worked for three hours, but he was paid for five hours.  He said that when his engineering job ended, his manager insisted that he had to work for five hours.  On behalf of the respondent, Mr Viviers explained that employees are generally scheduled to work for five hours on Sundays, and they are paid for five hours.  He said that sometimes, the client may permit employees to leave early, but the client pays for the rostered five hours.  When the complainant returned to work as a valeter / driver, having worked on the engineering job for a year, he was asked to make himself available on Sundays, but he refused.

On the form he submitted to the WRC, the complainant said that he would like to “finish my work with Assured Personnel Limited and I would like to get redundancy compensation.”  He said that, when his job changed from cleaning and driving, to installing the black box units, he didn’t get written confirmation of this change.  He claims that he was then demoted, although his employer assured him that this would be temporary.

In her submission, Ms Murphy said that the complainant is not obliged to accept Sunday shifts and he didn’t work any Sunday shifts when he did the engineering job between October 2023 and October 2024. 

The complainant submitted this complaint to the WRC on January 31st 2025.  He resigned three weeks later, on February 20th.  On the date of his resignation, his hourly rate of pay was €14.50 and the minimum hourly rate of pay was €13.50.

The complainant claims he was not compensated for working on Sundays, although his contract provides that pay for working on Sundays is incorporated into his hourly rate of pay.  It is the respondent’s case that the complainant’s claim is misconceived.

Section 14(1) of the Organisation of Working Time Act 1997 (“the Act”) sets out the provisions for Sunday working:

(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.

It is apparent from this that the legislation requires Sunday pay to be accounted for, such as it is in the “composite” hourly rate in the complainant’s contract of employment.  His hourly rate of €14.50 per hour was in excess of the statutory minimum wage of €13.50 an hour and explicitly accounted for any required Sunday premium.

In her submission, Ms Murphy noted that there is no set figure in excess of the minimum wage which is required to be paid to ensure compliance with the legislation.  To that end, she referred to the decision of the Labour Court in Cadbury Ireland Limited v SIPTU[1], where the Court accepted that a premium of 14% of the normal hourly rate of pay satisfied s.14 of the Act.

Mr Murphy also referred to the decision of the High Court in Trinity Leisure Holdings Limited trading as Trinity City Hotel and Sofia Kolesnik and Natalia Alfimova[2], where it was held that the Labour Court erred by finding in the employees’ favour in relation to Sunday pay.  The High Court confirmed that where a contract contains a clear statement that the hourly rate of pay takes into account the requirement to work on Sundays, that satisfies the relevant legislation.  It also rejected the employees’ contention that the 1994 Act requires an employer to identify in their contracts of employment precisely what element of pay is attributable to the obligation to work on Sunday.

The final precedent referred to by Ms Murphy was the decision of my colleague adjudicator, Pat Brady, in his Decision on the complaint of Dan Nechita against Fingal County Council[3].  Mr Brady concluded that the following term in an employment contract complies with the statutory requirement for a premium payment for working on a Sunday in accordance with the High Court authority in the Trinity Hotel case:

“Unless otherwise provided for by way of collective agreement, your rate of pay has been adjusted to take account of the fact that you may be required to work on Sundays during the course of the year.”

This statement is similar to the same provision in the complainant’s statement of his terms and conditions, which he agreed to at the commencement of his employment.

Based on the authorities relied on by the respondent, I must conclude that the complainant’s rate of pay was at all times in compliance with s.14 of the Organisation of Working Time Act in relation to Sunday pay.

Although not specifically indicated on his complaint form, in the narrative of the form, the complainant alleged that he was not informed in writing when his job changed from cleaner / valeter to engineer.  I note that, under the heading, “Job Description,” his contract of employment provides as follows:

“Where you have been provided with a job description of the position to which you have been appointed, amendments may be made to this job description from time to time in relation to our changing needs and your own ability.  It may be necessary for you to perform alternative duties within the business.”

In his submission, the complainant said that he happily took on the alternative engineering role which involved the installation of the black box technology in cars.  From his evidence at the hearing, it is clear to me that he was less than happy when that job ended after 12 months and he felt that he should have been made redundant.  Based on the flexibility clause in the complainant’s contract of employment, I am satisfied that it was reasonable for the respondent to assign him to work that was different to the work to which he was assigned when he joined the company.  I also find that it was reasonable for the respondent to return the complainant to the valeting / driving job when the contract to install the black box technology ended. 

I have concluded that the respondent was not in contravention of s.14 of the Organisation of Working Time Act in relation to a Sunday allowance and I decide therefore, this this complaint is not well founded.  I find also that the respondent has no case to answer in relation to a requirement to provide the complainant with a written statement of the change to his job description.

Sunday allowance, written statement of change to terms and condition of employment