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Employer pays €15,000 for penalising employee

Facts: The Respondent employed the Complainant as a cleaner on 21st January 2019. She employed as a shift worker earning €11.50/hr + 20% shift allowance and was rostered 84 hours per fortnight. The Complainant claimed that she was not provided with appropriate terms and conditions of employment; did not receive her public holiday entitlement or compensation for Sunday hours. The Respondent argued that all required information regarding her employment were provided in the Employee Handbook which was referenced in the Complainants Contract and that the Complainant had access to the handbook. The Respondent also claimed that the Complainant was not entitled to a Sunday premium as it was included in the core pay along with the site allowance.

Findings: The Adjudicator found that the Respondent had satisfied the requirement of statutory element by providing all its employees access to Employee Handbook.

Regarding the Sunday premium payment, the Adjudicator held that the Complainant was not sufficiently compensated, although the Respondent claimed that the 20% shift allowance paid to the Complainant included the Sunday premium. The Adjudicating Officer noted that there were no documentation provided that indicated Sunday premium was included in this allowance. Referring to the Labour Court’s decision in Viking Security Limited -v- Thomas Valent (DWT1489), where it was held that “it is insufficient for the employer to simply say (as the Respondent does in this case) that because the rate exceeds the national minimum wage it compensates for Sunday working”. The Adjudication Officer held that compensation for Sunday working should be explicitly state in the Contract of employment or in the associated discussions. The Adjudication Officer further held that the Complainant was penalised as she was not allowed union representation at meetings.

Based on the above findings, the Adjudication Officer awarded the Complainant a sum of €15,000.00 for penalisation and also held  that the Respondent pay  the Complainant, time-plus-one-third of hourly rate (€11.50) for each hour worked on a Sunday for the 6 months preceding the receipt of this claim.

Note to Employers: The take-away for Employers from this decision is –

  1. Specifically detail the Sunday premium, irrespective of whether the employee’s remuneration covers a shift allowance and also maintain the records of such payment;
  2. Employees must be made aware of any/all policies which may affect his/her rights to representation.

https://www.workplacerelations.ie/en/cases/2019/december/adj-00023661.html

2nd December 2019

Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2.

www.aocsolicitors.ie

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