In the recent case of Trinity Leisure Holdings Ltd. t/a Trinity City Hotel v Sofia Kolesnik and Natalia Alfimova [2019] IEHC 654, the High Court found that where it is expressly stated in a contract of employment that working on Sundays has been taken into account in the setting of an employee’s pay, then this was sufficient to discharge an employer’s Sunday work obligation to employees.

Both employees worked two out of three Sundays and their contracts of employment specified an hourly rate of pay of €9.53, including for Sunday work wherein a term of the contract stipulated that the hourly rate “includes your Sunday premium based on you getting every third Sunday off (i.e. you work two Sundays out of three)”. However, neither contract explained how precisely it included the Sunday premium, i.e. the portion of the employees’ pay that was referable to the fact that they were required to work on Sundays. On that basis, both employees filed complaints under the Organisation of Working Time Act 1997 (‘the 1997 Act’) with the Rights Commissioner.

SUNDAY WORK LEGISLATION

Section 14(1) of the 1997 Act provides that where an employee is required to work on a Sunday, and their having to work on that day is not otherwise taken into account in determining their pay, they shall be compensated by the following means and to such an extent as is reasonable having regard to all of the circumstances: -

an allowance;
an increase in the rate of pay;
paid time off in lieu; or
a combination of two or more of the above.

THE DECISION OF RIGHTS COMMISSIONER AND LABOUR COURT#

The employees argued that their contracts did not identify what portion of their pay related to Sunday work and that therefore the requirement to work on Sundays had not been taken into account in determining their pay and that they were therefore entitled to be compensated under the 1997 Act. The employer argued that the employees’ contracts expressly took into account the requirement to work on Sundays in determining their pay.

The Rights Commissioner upheld the employees’ complaints and the employer was directed to pay the employees a premium of 30% for hours worked on Sundays for the period covered by their complaint. This decision was appealed by the employer to the Labour Court which upheld the earlier decision. The employer then appealed the determination of the Labour Court to the High Court. It is also worth noting that the employer did not provide any evidence to the Rights Commissioner or the Labour Court as to how the hourly rate took account of Sunday work. The only evidence presented to either forum was the contract of employment.

HIGH COURT DECISION

In allowing the employer’s appeal, Mr Justice Binchy held that the Labour Court had made an error of law in deciding that a clear statement in the contract of employment that the rate of pay included a Sunday premium could not be relied upon and that the employer was obliged to provide a breakdown of the Sunday work component of the employees’ pay.

While there was no evidence before the Court to rebut the wording of the contract, the High Court did note that “a statement in a contract that the rate of pay takes account of the requirement to work on Sundays may not always be conclusive”. However, it went on to hold that an employee would have to “advance some credible evidence to rebut the express provision of the employment contract, or at least so as to shift the onus of proof in the matter to the employer.” As to when this scenario might arise, the High Court gave the example of an employee whose rate of pay had initially been greater than the minimum wage, but where at the time of their complaint, was no longer above that level. In such circumstances, the Court commented, it would be difficult to argue that the rate of pay still reflected the requirement to work on a Sunday.

However, the High Court did point out that the wording of the contract may not always be conclusive; if an employee can provide credible evidence which contradicts the contract wording, the burden of proof will shift to the employer to show that the requirement to work on Sundays has genuinely been taken account of in the employee’s pay.

The judgment will be welcomed by employers as clarifying the position on Sunday work entitlements.