Workplace Relations Commission (WRC) - RECENT Decisions & judgements
Complainant compensated €1,270.50 gross as the Complainant was not paid a Sunday premium
Adjudication Reference: ADJ-00017948
This is a complaint about the non-payment of a premium for working on Sundays. The Complainant was employed from March 11th 2016 until June 26th 2018, when he resigned. He claims that he never received a premium for working on Sundays, and he was not informed of any arrangement about an additional payment for Sunday working.
Following his resignation on June 26th 2018, the Complainant said he went to work elsewhere. When he got his payslip, he said that he noticed that he was paid an additional amount for working overtime and for working on Sundays. A separate rate of pay was indicated on his payslip for overtime and Sunday working and this made him wonder why he hadn’t received these payments when he worked for the Respondent.
On October 5th 2018, when he got advice from the Citizens Information Centre, the Complainant sent an email to the Respondent and asked him why he had not received pay for overtime. The Respondent replied that all hours were paid at a “composite” rate which included compensation for working on Sundays and cleaning up times. He said that staff on hourly rates in his establishment are not paid an overtime rate.
On November 9th 2018, the Complainant submitted a complaint to the WRC about the non-payment of a premium for Sunday working. At the hearing, he said that he worked almost every Sunday from the date he commenced in 2016 and during 2017, but that in 2018, he worked very few Sundays. He didn’t get a contract of employment and he never received a letter of offer of employment setting out his rate of pay and the rate to be paid on Sundays. He didn’t receive a staff handbook. He brought copies of his payslips from the date that he started working with the Respondent and these show that he was paid €11.00 per hour for all hours worked.
In reply to this complaint, the Respondent said that he is in the process of drawing up contracts of employment for staff and he also has a handbook drafted. He accepts that the Complainant didn’t receive a statement of his terms and conditions of employment.
The Respondent’s case is that pay for working on Sundays is included in the hourly rate of €11.00 per hour and that all the hourly-paid employees are on this rate. The basic rate is €10.00 per hour, with a 10% premium added to compensate for working on Sundays.
In defence of his position, the Respondent said that when the Complainant resigned, he agreed and signed a “form of discharge” in which he accepted a voluntary payment of two weeks’ pay in lieu of notice and he accepted this “in full and final settlement of all claims or debts of any description” against the Respondent.
The provision for payment of a premium for working on Sundays is set out at section 14 of the Organisation of Working Time Act, (“the Act”):
In the case under consideration, the Respondent said that the hourly rate of €11.00 included a 10% premium for working on Sundays. He accepted that the Complainant was not notified of this in writing. The Complainant said that he was not informed about it at the time he was recruited and the first time that he had any idea that he was entitled to a Sunday premium was when he received this payment in his new job. As an Italian citizen, the Adjudication Officer accepted that the Complainant may not have been as familiar with his legal entitlements as an Irish person and the adjudication Officer found that his evidence in this regard was credible.
The Complainant said that he worked most Sundays in 2016 and 2017 and that he was often called in to work at the last minute. The Respondent produced a schedule of Sundays hours worked amounting to 350 hours from March 2016 until the Complainant finished working with the Respondent in June 2018.
In this instance, Adjudication Officer is satisfied that, while he was employed by the Respondent from March 2016 until June 2018, the Complainant worked at least 350 hours on Sundays. The Adjudication Officer is also satisfied that he was not informed of how he was to be compensated for Sunday working. The Adjudication Officer reached the conclusion that the Complainant was not paid a Sunday premium and the Respondent was in breach of section 14 of the Act. On this basis, the Complainant is entitled to redress in the form of compensation.
As the Respondent provided details that the Complainant worked for 350 hours on Sundays, and, as he was paid €11.00 per hour, he earned €3,850 for these hours. Adjudication Officer has decided that the Respondent is to pay the Complainant compensation of €1,270.50 gross, which is equivalent to 33% of his hourly rate.
Claimant awarded €962 as did not receive adequate compensation for Sunday work
Adjudication Reference: ADJ-00010516
The Complainant claims that he worked three out of every four Sundays on average since he started in the Company and did not receive adequate compensation for Sunday work from his Employer.
The Respondent claims that a Sunday Premium was incorporated into the hourly rate of pay.
The Complainant claims that he was initially employed on a 7-month fixed term contract from 21st April 2014 and his contract stated that his rate of pay was €8.66 per hour and that a Sunday premium was incorporated into the hourly rate.
He said that national minimum wage was €8.65 at the time. Therefore, the rate of hourly pay was €0.01 over that minimum wage level. His contract rolled beyond the 7 months and no alternative contract was proposed. He said that the only element that changed was that his hourly rate of pay increased in line with the national minimum wage changes plus 1 cent per hour over that rate. He resigned his position on 11th February 2018 and was being paid €9.56 at that time - the national minimum wage plus one cent per hour.
He claims that on average he worked 3 out of every 4 Sundays – a total of 145 Sundays as his estimation over 4 years approximately. He claims that he approached his Employer on numerous occasions seeking a review of the Sunday pay rate without any success. Accordingly, he said he had no choice but to refer the matter to the Workplace Relations Commission.
He said that the Organisation of Working Time Act states that if an Employee has to work on Sunday they are entitled to either, a reasonable allowance, a reasonable pay increase or reasonable paid time off work. He said he received none of these in his time working there.
The Complainant claims that he is not aware what the proper Sunday premium rate is as regards the custom and practice for the sector. However, he is aware that a comparable Company close to where he worked pays its employees a Sunday premium time and quarter for a similar job with parking and valeting duties similar to his role with the Respondent. He referred to other Labour Court recommendations were even higher rates for Sunday premiums were recommended.
The Complainant said that he is aware, since his resignation that the Respondent has now agreed to pay its employees a Sunday premium rate.
The Respondent accepts that the Complainant started work with it on 21st April 2014 as a Driver and left his employment on 11th February 2018. The Respondent accepts that the Complainant was paid €9.56 per hour prior to leaving the company. It claims that a Sunday Premium was incorporated into the hourly rate of pay. It claims that the Complainant was rostered between Monday and Sunday.
The Respondent said that in April 2018 the Company introduced an additional payment for all employees who work on a Sunday.
The Respondent said that it had made two offers to try to settle the complaint but it was declined by the Complainant.
The Adjudication Officer is satisfied that it is insufficient for the Employer to simply say that because the basic rate of pay exceeds the national minimum wage it compensates for Sunday working. The Adjudication Officer does not accept that this is sufficient to infer that the Sunday premium has been provided. Noting that the Respondent has since made efforts to attempt to rectify this anomaly and a Sunday premium is now being paid to its workers. It is clear that this Sunday premium was not being paid while the Complainant was employed there.
The Adjudication Officer articulates that he does not have proper figures to demonstrate a custom and practice for Sunday premium pay for this industry. Therefore, guided in this instance by the Complainant’s comparator of similar work carried out in a similar type company. The Respondent has not provided me with an alternative figure for consideration. Therefore, Adjudication Officer finds that a Sunday premium of 25% should be considered fair and reasonable in these circumstances.
Section 41 of the Workplace Relations Act 2015 requires that the Adjudication Officer made 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 the Adjudication Officer made a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
The complaint in relation to a breach of Section 14 of the Organisation of Working Time Act 1997 is well founded and the Adjudication Officer ordered the Respondent to pay the Complainant €962 (nine hundred and sixty-two euro).
Which is calculated as follows:
25% of €9.26 = €2.32= Sunday Premium per hour
€2.32 per hour x 8 hours per Sunday = €18.56 owed per Sunday worked
€18.56x 19.5 Sundays (3 out of 4 Sunday) worked in the last 6-month period = €362]
Adjudication Reference: ADJ-00017948
This is a complaint about the non-payment of a premium for working on Sundays. The Complainant was employed from March 11th 2016 until June 26th 2018, when he resigned. He claims that he never received a premium for working on Sundays, and he was not informed of any arrangement about an additional payment for Sunday working.
Following his resignation on June 26th 2018, the Complainant said he went to work elsewhere. When he got his payslip, he said that he noticed that he was paid an additional amount for working overtime and for working on Sundays. A separate rate of pay was indicated on his payslip for overtime and Sunday working and this made him wonder why he hadn’t received these payments when he worked for the Respondent.
On October 5th 2018, when he got advice from the Citizens Information Centre, the Complainant sent an email to the Respondent and asked him why he had not received pay for overtime. The Respondent replied that all hours were paid at a “composite” rate which included compensation for working on Sundays and cleaning up times. He said that staff on hourly rates in his establishment are not paid an overtime rate.
On November 9th 2018, the Complainant submitted a complaint to the WRC about the non-payment of a premium for Sunday working. At the hearing, he said that he worked almost every Sunday from the date he commenced in 2016 and during 2017, but that in 2018, he worked very few Sundays. He didn’t get a contract of employment and he never received a letter of offer of employment setting out his rate of pay and the rate to be paid on Sundays. He didn’t receive a staff handbook. He brought copies of his payslips from the date that he started working with the Respondent and these show that he was paid €11.00 per hour for all hours worked.
In reply to this complaint, the Respondent said that he is in the process of drawing up contracts of employment for staff and he also has a handbook drafted. He accepts that the Complainant didn’t receive a statement of his terms and conditions of employment.
The Respondent’s case is that pay for working on Sundays is included in the hourly rate of €11.00 per hour and that all the hourly-paid employees are on this rate. The basic rate is €10.00 per hour, with a 10% premium added to compensate for working on Sundays.
In defence of his position, the Respondent said that when the Complainant resigned, he agreed and signed a “form of discharge” in which he accepted a voluntary payment of two weeks’ pay in lieu of notice and he accepted this “in full and final settlement of all claims or debts of any description” against the Respondent.
The provision for payment of a premium for working on Sundays is set out at section 14 of the Organisation of Working Time Act, (“the 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 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:
- By the payment to the Employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
- By otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or
- By granting the Employee such paid time off from work as is reasonable having regard to all the circumstances, or
- By a combination of two or more of the means referred to in the preceding paragraphs.
In the case under consideration, the Respondent said that the hourly rate of €11.00 included a 10% premium for working on Sundays. He accepted that the Complainant was not notified of this in writing. The Complainant said that he was not informed about it at the time he was recruited and the first time that he had any idea that he was entitled to a Sunday premium was when he received this payment in his new job. As an Italian citizen, the Adjudication Officer accepted that the Complainant may not have been as familiar with his legal entitlements as an Irish person and the adjudication Officer found that his evidence in this regard was credible.
The Complainant said that he worked most Sundays in 2016 and 2017 and that he was often called in to work at the last minute. The Respondent produced a schedule of Sundays hours worked amounting to 350 hours from March 2016 until the Complainant finished working with the Respondent in June 2018.
In this instance, Adjudication Officer is satisfied that, while he was employed by the Respondent from March 2016 until June 2018, the Complainant worked at least 350 hours on Sundays. The Adjudication Officer is also satisfied that he was not informed of how he was to be compensated for Sunday working. The Adjudication Officer reached the conclusion that the Complainant was not paid a Sunday premium and the Respondent was in breach of section 14 of the Act. On this basis, the Complainant is entitled to redress in the form of compensation.
As the Respondent provided details that the Complainant worked for 350 hours on Sundays, and, as he was paid €11.00 per hour, he earned €3,850 for these hours. Adjudication Officer has decided that the Respondent is to pay the Complainant compensation of €1,270.50 gross, which is equivalent to 33% of his hourly rate.
Claimant awarded €962 as did not receive adequate compensation for Sunday work
Adjudication Reference: ADJ-00010516
The Complainant claims that he worked three out of every four Sundays on average since he started in the Company and did not receive adequate compensation for Sunday work from his Employer.
The Respondent claims that a Sunday Premium was incorporated into the hourly rate of pay.
The Complainant claims that he was initially employed on a 7-month fixed term contract from 21st April 2014 and his contract stated that his rate of pay was €8.66 per hour and that a Sunday premium was incorporated into the hourly rate.
He said that national minimum wage was €8.65 at the time. Therefore, the rate of hourly pay was €0.01 over that minimum wage level. His contract rolled beyond the 7 months and no alternative contract was proposed. He said that the only element that changed was that his hourly rate of pay increased in line with the national minimum wage changes plus 1 cent per hour over that rate. He resigned his position on 11th February 2018 and was being paid €9.56 at that time - the national minimum wage plus one cent per hour.
He claims that on average he worked 3 out of every 4 Sundays – a total of 145 Sundays as his estimation over 4 years approximately. He claims that he approached his Employer on numerous occasions seeking a review of the Sunday pay rate without any success. Accordingly, he said he had no choice but to refer the matter to the Workplace Relations Commission.
He said that the Organisation of Working Time Act states that if an Employee has to work on Sunday they are entitled to either, a reasonable allowance, a reasonable pay increase or reasonable paid time off work. He said he received none of these in his time working there.
The Complainant claims that he is not aware what the proper Sunday premium rate is as regards the custom and practice for the sector. However, he is aware that a comparable Company close to where he worked pays its employees a Sunday premium time and quarter for a similar job with parking and valeting duties similar to his role with the Respondent. He referred to other Labour Court recommendations were even higher rates for Sunday premiums were recommended.
The Complainant said that he is aware, since his resignation that the Respondent has now agreed to pay its employees a Sunday premium rate.
The Respondent accepts that the Complainant started work with it on 21st April 2014 as a Driver and left his employment on 11th February 2018. The Respondent accepts that the Complainant was paid €9.56 per hour prior to leaving the company. It claims that a Sunday Premium was incorporated into the hourly rate of pay. It claims that the Complainant was rostered between Monday and Sunday.
The Respondent said that in April 2018 the Company introduced an additional payment for all employees who work on a Sunday.
The Respondent said that it had made two offers to try to settle the complaint but it was declined by the Complainant.
The Adjudication Officer is satisfied that it is insufficient for the Employer to simply say that because the basic rate of pay exceeds the national minimum wage it compensates for Sunday working. The Adjudication Officer does not accept that this is sufficient to infer that the Sunday premium has been provided. Noting that the Respondent has since made efforts to attempt to rectify this anomaly and a Sunday premium is now being paid to its workers. It is clear that this Sunday premium was not being paid while the Complainant was employed there.
The Adjudication Officer articulates that he does not have proper figures to demonstrate a custom and practice for Sunday premium pay for this industry. Therefore, guided in this instance by the Complainant’s comparator of similar work carried out in a similar type company. The Respondent has not provided me with an alternative figure for consideration. Therefore, Adjudication Officer finds that a Sunday premium of 25% should be considered fair and reasonable in these circumstances.
Section 41 of the Workplace Relations Act 2015 requires that the Adjudication Officer made 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 the Adjudication Officer made a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
The complaint in relation to a breach of Section 14 of the Organisation of Working Time Act 1997 is well founded and the Adjudication Officer ordered the Respondent to pay the Complainant €962 (nine hundred and sixty-two euro).
Which is calculated as follows:
- €600 [six hundred euro] as compensation for the breach of Section 14 of the Act which is not taxable and;
- €362 (three hundred ninety-two euro) for actual economic loss.
25% of €9.26 = €2.32= Sunday Premium per hour
€2.32 per hour x 8 hours per Sunday = €18.56 owed per Sunday worked
€18.56x 19.5 Sundays (3 out of 4 Sunday) worked in the last 6-month period = €362]
Note on WRC:
The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.
The establishment of the Workplace Relations Commission has resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA).
In addition to this the Labour Court has been reconfigured in order to hear appeals.
The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and a much more streamlined, simplified process.
The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.
The establishment of the Workplace Relations Commission has resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA).
In addition to this the Labour Court has been reconfigured in order to hear appeals.
The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and a much more streamlined, simplified process.
Adare Human Resource Management is one of Ireland’s leading Employment Law and Human Resource Management Consultancies. Our HR & Employment Law Support Services include:
www.adarehrm.ie
- Advice on all Employment Law, Industrial Relations and HR queries or issues
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