Trinity Leisure Holdings Ltd Ta Trinity City Hotel

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 07 October 2019
• Neutral Citation: [2019] IEHC 654
• Docket Number: [2017/ 81 MCA]
• Court: High Court
• Date: 07 October 2019

[2019] IEHC 654

THE HIGH COURT

Binchy

[2017/ 81 MCA]

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 46 OF THE WORKPLACE RELATIONS COMMISSION ACT, 2015

BETWEEN

TRINITY LEISURE HOLDINGS LIMITED TRADING AS TRINITY CITY HOTEL

APPELLANT

AND

SOFIA KOLESNIK

AND

NATALIA ALFIMOVA

RESPONDENTS

Employment law – Jurisdiction – Organisation of Working Time Act 1997 s. 14(1) – Appellant seeking an order declaring that the Labour Court erred in law in assuming jurisdiction under s. 14(1) of the Organisation of Working Time Act 1997, or in applying that section to the respondents in granting them relief pursuant to the same – Whether the Labour Court made an error of law by ignoring the express statement in the contracts of employment of the respondents, that their hourly rate of pay includes their Sunday premium

Facts: The respondents, Ms Kolesnik and Ms Alfimova, advanced identical claims against the appellant, Trinity Leisure Holdings Ltd, alleging various breaches of employment law legislation, one of which was the claim that the claimants were not paid a premium for working on Sundays. That claim was advanced pursuant to s. 14(1) of the Organisation of Working Time Act 1997. The appellant appealed to the High Court against a decision of the Labour Court of 17th January 2017. The appellant sought, inter alia, the following orders: (i) an order declaring that the Labour Court erred in law in assuming jurisdiction under s. 14(1) of the 1997 Act, or in applying that section to the respondents in granting them relief pursuant to the same; (ii) an order allowing the appeal on the ground that the Labour Court erred in law in awarding Sunday premium to the respondents; (iii) a declaration that the Labour Court erred in law in determining that the appellant had to tender evidence in relation to what element of the respondent’s hourly rate of pay was specifically referable to them having to work on Sundays; (iv) a declaration that the Labour Court erred in law in failing to find the fact of the respondents having to work on Sundays had been taken into account in the determination of their pay.

Held by Binchy J that, upon receiving a complaint from an employee that his or her rate of pay does not take account of the requirement of Sunday work, it is obvious that the Labour Court must undertake an investigation as to whether or not this is so; its conclusion on the issue constitutes a finding of fact, which, in the ordinary course, will not be disturbed by the Court. Binchy J noted that in this case that finding of fact was arrived at by the Labour Court on the basis that the appellant “failed to tender any evidence to the court in relation to what, if any, element of the complainants’ hourly rate of pay was specifically referable to [their] contractual obligation to work on Sundays”. Binchy J held that, in the circumstances of the case, this was a conclusion on a matter of law, because in so deciding the Labour Court decided that a clear statement made in a contract of employment signed by both parties may not be relied upon, and instead must be proven in a particular way. In drawing this conclusion the Labour Court in Binchy J’s view made an error of law. Binchy J held that it did so firstly by ignoring the express statement in the contracts of employment of the respondents, that their hourly rate of pay includes their Sunday premium. Binchy J held that it did so secondly by interpreting the 1997 Act in such a manner as to impose an obligation on an employer either to ensure that a contract of employment is drawn up in a particular way i.e., to explain by way of a breakdown any statement to the effect that an hourly rate takes into account the obligation to work on a Sunday, or, alternatively, to adduce oral testimony at the hearing of a complaint pursuant to s. 14 of the 1997 Act in order to prove a statement agreed expressly to by an employee in his/her contract of employment.

Binchy J held that the appeal must be allowed, and the claim of the respondents under s. 14(1) of the 1997 Act dismissed.

Appeal allowed.

JUDGMENT of Mr. Justice Binchy delivered on the 7th day of October, 2019

1 This is a judgment on an appeal brought by the appellant against a decision of the Labour Court of 17th January 2017. As prescribed by O. 84 (C) of the rules of the Superior Courts, the appeal is brought by way of an originating notice of motion, grounded on an affidavit sworn on behalf of the appellant by a Mr. Ronnie Neville, solicitor, of Mason Hayes and Curran, solicitors for the appellant. Provision for such appeals is made by s. 46 of the Workplace Relations Act 2015, on a point of law only.

2 The respondents advanced identical claims against the appellant alleging various breaches of employment law legislation, only one of which is relevant to this appeal, and that is the claim that the claimants were not paid a premium for working on Sundays. That claim is advanced pursuant to s. 14(1) of the Organisation of Working Time Act 1997 (“the Act of 1997”). The appellant seeks, inter alia, the following orders: -

(i) An order declaring that the Labour Court erred in law in assuming jurisdiction under s. 14(1) of the Act of 1997, or in applying that section to the respondents in granting them relief pursuant to the same;

(ii) An order allowing the appeal on the ground that the Labour Court erred in law in awarding Sunday premium to the respondents;

(iii) A declaration that the Labour Court erred in law in determining that the appellant had to tender evidence in relation to what element of the respondent's hourly rate of pay was specifically referable to them having to work on Sundays;

(iv) A declaration that the Labour Court erred in law in failing to find the fact of the respondents having to work on Sundays had been taken into account in the determination of their pay.

3 A statement of opposition was delivered on behalf of the respondents in which they fu deny each ground of appeal relied upon by the appellant in its appeal/notice of motion. In summary, the repsondents plead that the decision of the Labour Court involves unappealable findings of fact, and that the appellant has failed to identify any errors of law on the part of the Labour Court in arriving at its decision.

4 The first named respondent originally entered into her contract of employment on 10th September 2007, and the second named respondent entered into her contract of employment on 11th September 2006. The respondents were not initially employed by the appellant and their respective employment contracts transferred to the appellant in September 2013 pursuant to the EC (Protection of Employment on Transfer of Undertakings) Regulations 2003, S.I. 131 of 2003. Their contracts made provision for payment of salary at an hourly rate, which, on the date on which their claims were made, was in each case €9.53 per hour. In each case, the contract having stated the hourly rate of pay, goes on to state: -

“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 […]”

5 It was the respondent's contention before both the Labour Court and the Rights Commissioner that where a Sunday premium is included in an employee's rate of pay, then some element of the employees pay must be specifically referable to the obligation to work on Sundays. Since in this case the contract did not identify any element of the claimants’ pay as being a premium for working on Sundays, then it follows that the fact of the employees having to work on Sundays has not been taken into account, and the employees are therefore entitled to be compensated in accordance with those provisions of s. 14(1) of the Act of 1997 that apply where the fact of an employee having to work on a Sunday has not been taken into account in the determination of his or her pay.

6 In response to this, it is the appellants’ case that the determination of the employee's pay does take account of the fact that they are required to work on Sundays, because this is expressly stated to be so in the contracts, and there is no requirement that the contract should identify how much of the hourly rate of pay is specifically referable to Sunday work.

7 The Labour Court held against the appellant, in each case in identical terms, on the grounds that: -

“[…] 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. It follows that the respondent's cross appeal in this regard fails. At first instance, the adjudication officer directed the respondent to pay the complainant ‘a premium of 30% of the basic rate for all hours worked on Sundays falling within the period 25th September 2013 to 24th March 2014’. The court affirms that decision”.

8 Section 14(1) of the Act of 1997 provides as follows: -

“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—

(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.”

9 In the event of a claim being advanced by an employee to a rights commissioner (now, since the Workplace...