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A FIRM THAT operates the Nespresso franchise at Arnotts in Dublin has been ordered to pay a coffee advisor €1,008 over its failure to pay the worker a Sunday premium.
Coffee advisor Carol Lombard is paid a basic €14 per hour but the firm which operates the Nespresso contract, the Sandyford registered McCurragh Limited argued that the Sunday premium is included in the €14 hourly rate which it argued is a composite hourly rate.
However, at the Workplace Relations Commission (WRC), Brian Dalton adjudicated that Lombard’s complaint is well founded and found that the firm breached the Organisation of Working Time Act 1997 by not paying Lombard a Sunday premium.
Dalton found that Lombard should have been paid one-and-a-half times her usual hourly rate on a Sunday.
The award would have been far higher but for the Nespresso franchise was closed for the relevant six months due to Covid-19 restrictions and Dalton concluded that Lombard suffered no financial loss and no award has been made for loss.
Lombard works 12 hours a week for McCurragh and Dalton awarded her six weeks compensation for McCurragh Ltd’s failure to comply with the Organisation of Working Time Act.
Dalton found that there is no evidence to support the proposition that Lombard’s €14 rate in fact does take account of Sunday work.
Dalton stated: “In these circumstances the employee is entitled to the appropriate means as set out in the Act.”
Dalton declared that the complaint is well founded as the employer asserted that Lombard is required to work a Sunday based on a €14 hourly composite rate, absent of a contractual right to do so, without any additional compensation as required by the Act and that contravention continues.
Dalton stated that McCurragh had made representations for a 25% Sunday premium for its staff “and this was not agreed to by Nespresso”.
McCurragh told the WRC that “the cost of any premium work must be approved by Nespresso”.
In his findings, Dalton found that in the absence of any reference in the contract to Sunday work and to a term that the rate of pay incorporates a Sunday work premium; it cannot be inferred from the fact that the hourly rate is above average that it implies that it incorporates a premium for Sunday work.
Lombard told the hearing that comparable employees within Arnott’s business received time and a half for Sunday working.
On behalf of Lombard, Mandate Divisional Organiser Robert McNamara said that Lombard is “very happy” with the outcome.
He said: “The adjudication copper-fastens that time and a half is the applicable rate for working Sundays and the decision is a cautionary tale for employers to make sure that they comply with the Organisation of Working Time Act.”
McNamara said that Lombard continues to work on the Nespresso account for McCurragh Ltd.
He said: “This case points up that these sub-contractors should make sure that they can comply with legislative provisions in Ireland concerning the likes of the Organisation of Working Time Act when they take on these contracts.”
McNamara said that McCurragh Ltd has not yet paid the €1,008 award to Lombard, stating that it is still open to McCurragh to appeal the WRC decision to the Labour Court.
McNamara said that the vast majority of employers in the retail sector do pay the Sunday time-and-a-half premium. He said: “We very much welcome the WRC adjudication.”
The most recent accounts for McCurragh Ltd show that it recorded pre-tax profits of €361,000 in the 12 months to the end of June 2021 as revenues totalled €6.88m. The firm employed 140 workers during the period.
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Then people wonder why such jobs can’t be filled. Why would anyone work in such conditions?
Hotel in Rochestown Cork pay 11 e an hour on all days . Nothing extra for Sunday or Bank Holiday. And some staff work to midnight on this rate.
Staff turn over why?.
I won’t ever support it again.
I wonder do security staff in the airport get a Sunday premium rate?
@Hugh Mc Donnell: They will be lucky to get a tea break this coming weekend!
@Hugh Mc Donnell:
Sort of a vague question, if don’t include or consider what contract stipulates.
There were security contracts that rose hourly wages, under the agreement that allocated shift hours, could be on any of the 7 days of week. Or some that rose hourly wages while having the ability to put someone on a 7pm-7am shift without night bonus.
Most went with a night bonus if worked like 4 hours from midnight to 4am. or just sunday shift allowance.
@Ixtrix Net: are they on a composite rate of €14e an hour for all hours worked? or do they get something extra like time +half for Sunday. They have a very early start 5am approx so up at 4am and on the road to work so an unsociable hours allowance should apply for an early start also
@Hugh Mc Donnell: no extra, there was an X employee on Claire Byrne last night who opened up many of the problems, such as T2 workers paid less than T1.
Well done to Carol Lombard and Mandate for challenging this blatant disregard of the Working Time Act.
Isn’t it time something was done about this and im delighted with the outcome,if your working on a Sunday for lunches in any hotel or Restaurant it’s the busiest day of the week,and families brings their children aswell,it’s been a long time since I worked in a hotel,but we would rather serve a wedding of 250,than do lunch for a 100,yee feed the wedding at the same time,lunches all u need is 1 table to turn up later,and the 2nd sitting of people I’d all over the place,even though there was 10% on the bill service charge we never saw it,most of the people would ask us when they would get the bill,and we would say no,they would give u a few bob for ourselves,to this day where ever I eat out,even if it’s only coffee and a bun or sandwich,I will always ask..
@Kate Peters:
Not sure if read Saru Jayaraman, but she talk a lot of sense around waitressing in particular ( usa based )
What got pretty infuriating, for me, regarding USA mostly, was the waitresses on 2.13$/ph that exist on tips, being asked ,during height of covid. to remove their masks so patrons could determine how much to tip based on how cute they were.
I just do not understand the sub-humanity that exists.
@Kate Peters: it’s law, nothing needs to be done about it. Enforcement at best from the WRC on inspection but I’m 20 yrs in an industry and I’ve only ever seen 1 inspection. They look for staff contracts/handbooks with rate of pay, premium pay, unsociable hours rate (if applicable to the industry),clock in and out records,holiday records,proof of payment and corresponding payslip,plus so many more. But I think there are only a few inspectors covering the whole country
@Gerard Collins: inspectors, what are they, 30 years in construction and the same, possibly 4 site inspections and always the builder was given advance warning and all on site told to be on their best behaviour with regard to the rules.
At €6.80 for a sleeve of 10 large capsules, they can afford time and a quarter on a Sunday.
I get 1c more per hour on a sunday. Tough to know how to spend my windfall.
We get paid €14 x 0.3 for a Sunday . Is that legal ?
@Aunties: if it is stipulated in a contract or handbook, and you have agreed or accepted that stipulation, it becomes part of your terms and conditions of employment. The case reported centres on the lack of clarity -and is based on the assumption that above minimum wage is a composite hourly rate allowing for Sunday premium.
For clarity and best practice, entitlement to Sunday premium should be clearly stated. In my opinion, the employer would not have this expense if the contract stated that the rate was a composite including Sunday premium
@Tom Walsh: thank Tom
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