Complainant

Respondent

Parties

Adam  Callan

Cross Centra Roseberry Hill – Cross Retail Convenience Group Ltd

Representatives

None

 Lorna Campbell, HR Consultant

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-00076343-001

13/10/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00076343-002

13/10/2025

The Complainant was employed by the Respondent from 2021 to 2025.  He contends he was underpaid in respect of Sunday premium. The Respondent refutes this claim.

The Complainant commenced employment with the Respondent in 2021 as a sales assistant.  He received a written contract at the start of his employment.

The Complainant was promoted to a supervisory role on 6th May 2022.  At the time of his promotion, the Complainant was informed that his terms and conditions of employment remained unchanged, save for two exceptions: an increase in his hourly rate and a change in his job title.

After his promotion, the Complainant repeatedly requested a “Supervisor’s Contract of Employment”.  He was told no such contract existed.  He asked his peers if they received a revised contract of employment when they became supervisors and/or managers.  They confirmed they did not receive a new contract either.  However, he continued to request a new contract because his manager was accusing him of not carrying out all of his supervisory functions and he wanted to know what his job description was.  He was eventually furnished with a supervisors contract of employment in July 2025.  This document was dated 6th May 2022.

At first, the Complainant did not notice the provision with respect to payment for Sunday working. Upon reviewing the contract on another occasion, he noted that the clause governing Sunday working provided for payment at time and a fifth, representing a 20% premium. However, since the commencement of his employment, he had only been paid a Sunday premium of 5%.  He contends that this constitutes a breach of his contract of employment.  The Complainant outlined that when he raised the matter with management, he was advised that the inclusion of the time and a fifth provision was an error and that the Respondent does not, and has never, paid a 20% premium to any employee. The Complainant maintains that he has been underpaid in respect of hours worked on a Sunday as his contract of employment provides for time and one fifth. 

In cross-examination the Complainant did not accept that the provision of time and a fifth was a typo in the template contract he received. He accepted that in practice all staff receive a 5% premium for hours worked on Sundays.  He added that the Respondent is obliged to ensure that the written statement of terms of employment is accurate.  The Complainant accepted that there is no provision under statute setting out the amount of Sunday premium he is entitled to get but added a 5% premium was low.  The Complainant outlined that he could not have presented his complaint to the WRC sooner than he did as he was only furnished with a supervisor’s contract of employment in July 2025.  He then raised the issue of the underpayment with management.

In response to a question from the Adjudication Officer, the Complainant outlined he worked 2 to 3 Sundays a month and was underpaid by €17.44 each Sunday.  The Complainant was requested to submit the dates he claims he was underpaid after the hearing.  This information was duly provided and copied to the Respondent for comment.  In his supplementary written submission, the Complainant submitted that a sum of €1,415.05 in unpaid wages was owing to him which covered Sundays worked between 18th May 2022 to 2025.

Ms Campbell outlined that she drafts statement of terms templates for the Respondent.  The Complainant received a written statement of terms of employment when he commenced employment with the Respondent in 2021.  He was promoted in 2022 to a supervisory role.  That resulted in two changes: an increased hourly rate of pay and a change in job title.  Both changes were reflected on his payslip.  Although he requested a revised contract of employment, he was not furnished with one because none of the terms of employment had changed other than the hourly rate of pay and the job title. 

Following several requests for a revised contract of employment, Ms Campbell issued the Complainant with a revised contract.  However, that new template contained an error with respect to Sunday premium.  The document specified time and a fifth for Sunday working when it should have provided for a 5% premium only.  The Respondent pays, and always paid, a 5% premium only.  This applies to all staff working Sunday hours with no exceptions.  The error was notified in writing to any staff member (12 in total) who received a contract with time and a fifth specified therein.  The Complainant had left the Respondent’s employment at the time of that notification.  The contract template has now been corrected to reflect the 5% payment actually paid to all staff.  The inclusion of time and a fifth was a genuine error.

In the post hearing written response to the Complainant’s post hearing written submission, the Respondent accepted the dates submitted by the Complainant as being the Sunday hours worked but reiterated its position that the Complainant is not owed wages for the reasons given at the hearing.  The Respondent also reiterated that the complaint was brought in October 2025 and any alleged contravention occurring outside of the statutory time period is statute barred; and that the alleged breach of the Payment Wages Act, 1991 is not a subsisting breach.

CA-00076343-001 – Complaint under the Organisation of Working Time Act, 1997

At the hearing, the Complainant withdrew this complaint and elected to have the complaint dealt with under the Payment of Wages Act, 1991.

CA-00076343-002 – Complaint under the Payment of Wages Act, 1991

Relevant Law

Payment of Wages Act, 1991 (“the Act”)

Section 1(1) of the Act defines “wages” as:

“. . . any sums payable to the employee by the employer in connection with his employment, including— (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise . . .  

Section 5 of the Act provides:

“(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it . . .

(6) Where— (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

Section 6(1) of the Act provides:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding— (a) the net amount of the wages, or tip or gratuity as the case may be] (after the making of any lawful deduction therefrom) that— (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment, or (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount”.

In Marek Balans v. Tesco Ireland Limited [2020] IEHC 55, the High Court outlined that when considering a complaint under the Act, it must first be established the wages which were properly payable before considering whether a deduction had been made. 

In Tesco Ireland Limited v. Marek Balans (PWD21140), following the remittal of the complaint back to the Labour Court by the High Court, the Labour Court noted:

“The Court has regard to the terms of s.1 of the Act in its definition of ‘wages’, set out above. It seems to the Court that if the Oireachtas had intended that the terms of a contract were the only factors to be taken into account when determining what is ‘properly payable’ then this would have been reflected in the definition of wages set out in s.1 . . . it is clear to the Court that what is ‘properly payable’ has to be determined by the totality of circumstances referable to the employment . . . the Court is obliged to look at matters referable to the employment and not, merely, a mistake in the relevant contract . . . the Court cannot ignore that there was an agreed rate of pay that was intended to be applied to the Complainant and that applied to all of his colleagues in that category of worker . . . . ”

Findings

Section 5(6)(a) of the Act provides that, where the total amount of wages properly payable to an employee is not paid, any deficiency or non-payment is to be regarded as a deduction for the purposes of the Act.  Accordingly, and in line with Balans, the first issue to be determined is the amount of wages properly payable to the Complainant during the cognisable period.  The complaint was presented to the WRC on 13th October 2025.  The WRC’s jurisdiction is confined to assessing contraventions that may have occurred in the six-month period prior to that date.  The period for consideration is therefore limited to 14th April 2025 to 13th October 2025.  It must then be established whether there was a shortfall between the amount properly payable and that actually received and, if so, whether the shortfall arose for one of the reasons set out in section 5(1) of the Act.

The Complainant contends that from May 2022 onwards, he had a contractual entitlement to payment at time and a fifth for hours worked on Sundays.  It is common case the statement of terms of employment furnished to the Complainant in July 2025 provided for time and a fifth in respect of Sunday working.  It is also common case that the Complainant and all staff were, in practice at all times, paid a Sunday premium of 5%.  It is the Respondent’s case that the provision of time and a fifth in the statement of terms was an error.  The Complainant submits that responsibility for the accuracy of the statement rests with the Respondent.

As stated in Balans, central to my analysis must be the concept of wages properly payable.  I am satisfied that a premium of 5% for hours worked on a Sunday, not time and one fifth, was properly payable to the Complainant for the following reasons.  

The statement of terms of employment issued in July 2025, does not reflect the agreement reached between the parties at the time of the Complainant’s promotion on 6th May 2022.  It was common case the Complainant was issued with a statement of terms of employment on commencement of employment in 2021.  A copy of this statement was opened to the hearing.  That statement provided: “For hours worked on a Sunday you will receive a premium for hours worked”.  It was also common case that, at all relevant times, the Complainant, together with all other staff, irrespective of seniority, received a 5% premium for hours worked on a Sunday.  Further, it was common case that, both at the time of and following his promotion, the Complainant was repeatedly told that the only changes to his terms of employment were an increase in his hourly rate of pay and a change in job title.  There was no agreement at the time of the Complainant’s promotion to pay time and a fifth for Sunday working, and the established practice of paying a 5% Sunday premium continued unchanged on and after the Complainant’s promotion.

It was common case that following requests for same, a revised written statement of terms of employment issued to the Complainant in July 2025, and that statement provided for time and a fifth for Sunday hours.  A question therefore arises as to whether the issuing of that statement, drafted in July 2025, but dated 6th May 2022, changes the contractual position of the parties. 

The Respondent submits that the reference to time and one fifth for Sunday working arose due to an error in the contract template drafted at that time.  The Complainant rejects this explanation and contends that the Respondent bears responsibility for ensuring the accuracy of a statement of terms of employment.  Notwithstanding this, the Complainant accepted that there was no agreement at the time of his promotion to alter the existing Sunday premium and that, at all times, all staff, irrespective of position, received a Sunday premium of 5%.  He also gave evidence that he was surprised to see a reference to payment at time and one fifth included in the statement.

As noted by the Labour Court in Tesco Ireland Limited v. Marek Balans (PWD2114), s.1(1) of the Act provides that wages are determined by the contract ‘or otherwise’.  While in the instant case, unlike in Balans, the parties are not agreed that the contract contained an error, the Complainant does not dispute that there was no agreement at the time of his promotion to pay a time and one fifth for Sunday working, nor was it ever the Respondent’s practice to do so.  It is accepted that there was an agreed Sunday premium of 5%.  I accept the Respondent’s submission that the reference to time and one fifth was no more than an error within the statement and was neither intended to, nor did in practice, vary the existing Sunday premium arrangement.

In conclusion, to ground a claim under the Act wages must be properly payable.  I find that a Sunday premium of 5% was properly payable to the Complainant.  It was common case that a premium of 5% for all hours worked on Sunday by the Complainant was paid to the Complainant during the cognisable period relevant to this complaint.  Therefore, there was no shortfall or deficiency between the amount properly payable and that actually received by the Complainant during the cognisable period relevant to this complaint.  Accordingly, I find this complaint under the Payment of Wages Act, 1991 is not well founded.

CA-00076343-001

The Complainant withdrew this complaint at the hearing.

CA-00076343-002

I decide this complaint under the Payment of Wages Act, 1991 is not well founded.

Sunday premium.  Properly payable.