Is it enough for an employer to provide in the contract of employment a provision to the effect that the employee’s rate of pay has been calculated to include a premium for working on Sunday?
Does the employer need to provide evidence of the amount or premium if there is a claim to the WRC or Labour Court?
The High Court has held that when it comes to the premium that is to be paid for working on Sunday, in accordance with section 14 of the Organisation of Working Time Act 1997, it is sufficient for the employer to provide an express term in the contract of employment that the requirement to work on Sunday has been taken into account in calculating the rate of employee’s pay.
In a 7th of October 2019 decision of Mr. Justice Binchy in Trinity Leisure Holdings Limited trading as Trinity City Hotel and Sofia Kolesnik and Natalia Alfimova the High Court held that the Rights Commissioner at first instance, and the Labour Court on appeal, had made a mistake in finding for the employees.
The employees had contracts of employment which contained a provision that the hourly rate of pay..
“This includes your Sunday premium based on you getting every third Sunday off (i.e. you work two Sundays out of three). Payment will be made weekly with one week in arrears and will be paid directly into your bank account […]”
The employees had successfully argued at the Rights Commissioner service that as the contract failed to identify any element of the employees’ pay as being a premium for working on Sunday it followed that they were not paid the premium as provided for in the Organisation of Working Time act 1997.
The employer relied on the provision in the contract stating that the rate of pay took into account Sunday working and there was no obligation to identify how much is referable to working on Sunday.
The employees won their case at the Rights Commissioner service and the case was appealed to the Labour Court. The Labour Court agreed with the Rights Commissioner and found
“[…] the respondent failed to tender any evidence to the court in relation to what, if any, element of the complainant’s hourly rate of pay was specifically referable to her contractual obligation to work on Sundays”
In fact, the employer’s legal team argued that, inter alia, the Labour Court did not have jurisdiction to hear the claim as the employer had taken into account the need to work on Sunday in arriving at the rate of pay as required by section 14(1):
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—
Mr. Justice Binchy found that the Labour Court was incorrect in finding that no evidence had been adduced to the Labour Court about the Sunday premium by reason of the fact that the contract of employment was adduced in evidence and it provided, in an express provision, that the requirement to work on Sunday was taken into account and held that the “language used in the contracts is plain English and could not be more clear.”
He went on to find that the only evidence given at either hearing was the contract of employment and that the requirement imposed by the Labour Court that the employer must adduce further evidence to show a Sunday premium was paid was incorrect in law.
The fact that there is a provision in a contract is not conclusive, the High Court held, but it is up to the employees to adduce evidence to shift the onus of proof in the matter to the employer. If the employee fails to do so he leaves the contract unchallenged and the employer is under no obligation to go into evidence on the issue.
But it was this very fact, that the employer had failed to go into evidence, that led to the Labour Court finding against him.
Finally, the Labour Court arrived at a decision on a matter of law because it had decided that a “clear statement in the contract of employment signed by both parties could not be relied upon, and instead must be proven in a particular way.” This was a mistake and the Labour Court was not entitled to do this.
Moreover, it also fell into error in deciding that the Organisation of Working Time act 1997 imposed an obligation on an employer to draw up a contract in a particular way-that is, explain the breakdown of wages referable to working on Sunday, or to adduce evidence at a hearing of a complaint to prove a statement agreed to by an employee in the contract of employment.
These were findings of law, not fact, and the Labour Court was not entitled to make such findings.