Pay and Conditions in the Retail Sector

This article examines the recommendations made by the Labour Court in a recent case, Petrogas Group Ltd and Edgarus Paulauskas [2016], which involved a claim made by a retail worker with respect to his terms and conditions of employment. 

This case was published on the 29 August 2016 by the Deputy Chairman of the Labour Court further to an appeal from an Adjudicator’s findings on the 24 March 2016.A review of the case is warranted to ensure that the number of recommendations set by the Labour Court are considered.

The Complainant brought a claim before the WRC based on the following legislation (multiple grounds) and the conclusions of the Adjudication Officer were, in summary, as follows:

• Organisation of Working Time Act, partly infringed, awarded €150.
• The Terms of Employment (Information) Act 1994 – 2001, not upheld. 
• The EC (Protection of Employees on Transfer of Undertakings) Regulations 2003, not upheld.

Below is a summary of the main findings of the Labour Court which operates as an industrial relations tribunal hearing both sides of a case and issuing recommendations. It deals with industrial relations matters and those relating to the determination of appeals in matters of employment rights.

Please note that not all findings are covered in this article.  For the full decision, please click here: http://www.workplacerelations.ie/en/Cases/2016/September/DWT1676.html

Daily Rest Breaks

• The Complainant submitted that he did not receive an 11 hour break between shifts on several dates during the statutory reference period.
• The Respondent acknowledged that the complainant did not receive an 11 hour break on those dates. However, he was granted compensatory rest on each of those occasions and submitted that no infringement of the Act occurred.

The Court ordered the Respondent to pay the Complainant compensation in the sum of €150.

Learning: All employees are entitled to an 11 hour rest break between rostered shifts.

Rest Breaks:

• The Complainant submitted that he did not receive scheduled breaks as set out in the legislation. He further submitted that as he was employed as a “shop worker” within the meaning of the Act he was entitled to a break of one hour when working between 11.30am and 2.30pm. 
• The Respondent stated the Complainant regularly took breaks from work and also took other additional smoke breaks.

The Court found that the Respondent did not “require” the Complainant to work in a manner that infringed section 12(1) or 12(2) of the Act as he was at all times free to allocate break times to himself but chose not to do so. The Respondent did not consider the Complainant a ‘shop worker’ within the meaning of the Act and made no provision for him to take a one hour break in accordance with S.I. 57/1998. Accordingly, the Court found the Respondent had infringed the regulations on the days on which the Complainant was scheduled to work between the hours of 11.30am and 2.30pm.The Court ordered compensation in the sum of €250 for breaches of S.I. 57/1998.

Learning: Shop employees break entitlement fall under S.I. 57/1998 where it is clear that for work more than 6 hours and with hours including 11.30am–2.30pm shop employees are entitled to a 1 hour consecutive break which must occur during those hours.

Sunday Premium Pay

• The Complainant submitted that he was required to work on Sunday and was not paid a premium for so working.  
• The Respondent submitted that the Complainant's contract of employment required him to work on Sundays. It further submits that his annual salary amounted to €22,000 which, it submits, contained an element of compensation for the liability to work on Sunday. 

The Court found that the Complainant’s contract of employment clearly set out a requirement to work on Sunday and his salary was set at €22,000 p/a. However, there was no evidence that the salary contained any compensation for the requirement to work on Sundays. The Court ordered the Respondent to pay the Complainant compensation in the sum of €850.

Learning: The contract of employment must be clear what the Company Sunday premium pay is in itself for both salaried and hourly rate employees.

The EC (Protection of Employees on Transfer of Undertakings) Regulations 2003

• The Complainant stated that he was not provided with written notice of the transfer of undertakings that took place on 1 February 2015.
• The Respondent submitted that the Complainant was notified in writing by way of letter that accompanied his pay slip. 

The Court ordered the Respondent to pay the Complainant compensation in the sum of one weeks' pay.

Learning:  If a transfer of undertaking occurs, employees are entitled to written notice 30 days before the transfer or otherwise “in good time before the transfer” by the new employer.

The Terms of Employment Information Act

• The Complainant submitted that the Respondent infringed section 3 of the Act in relation to his employment. He submitted that he did not receive a copy of his contract within two months of the commencement of his employment.
• The Respondent claimed the Complainant suffered no adverse consequence as a result of the delay.

The Court ordered the Respondent to pay the Complainant compensation in the sum of one week’s wages.

Learning: An employee must be provided with a contract of employment or a written statement of terms within 2 months of commencement of employment.

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Caroline McEnery is speaking at this year's Annual Review of Employment Law conferences

A Practitioner’s Guide to WRC Hearings & Inspections. The new Workplace Relations Commission Adjudicator system in Ireland is different to the old procedures under Rights Commissioners, Equality Officers and the EAT. MD of the HR Suite Caroline McEnery discusses top tips which includes how to prepare documentation for inspections and hearings and what to expect if you are required to participate in an Adjudicator hearing.

Find out more about the Annual Review of Employment Law 2017 conference, including the full programme, speaker list and how to book your place here (the deadline for early bird discount is 5pm this Friday!):

Thursday 2nd November 2017 - Red Cow Moran Hotel, Dublin

Wednesday 15th November 2017 - Crowne Plaza Hotel, Northwood, Dublin

Thursday 30th November 2017 - Talbot Hotel, Stillorgan, Dublin