ADJ-00035162 - Workplace Relations Commission Wayne Timmons v Clare County Council

Judgment Date24 January 2023
Docket NumberADJ-00035162
Date24 January 2023
Hearing Date08 September 2022
CourtWorkplace Relations Commission
RespondentClare County Council

In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359 of 2020, which designates the WRC as a body empowered to hold remote hearings.

At the hearing the parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are held in public and, in most cases, decisions are not anonymised.

The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. All participants who gave evidence were sworn in. Both parties were offered the opportunity to cross-examine the evidence.


The Complainant commenced his employment with the Respondent on 5th June 2021 as a Temporary Beach Lifeguard. He was then appointed as a Temporary Senior Beach Lifeguard with effect from 5th June 2021. He was paid €16.07 gross per hour.

On 10th September 2021, the Complainant referred to the Director General of the WRC his complaints and a dispute against the Respondent.

The dispute under the Industrial Relations Act, 1969 was withdrawn prior to the hearing. The complaint bearing reference number CA-00046086-03 under section 6 of the Payment of Wages Act, 1991 was not pursued by the Complainant and was withdrawn at the hearing.

CA-00046086-002 - section 27 of the Organisation of Working Time Act, 1997 Summary of Complainant’s Case:

SIPTU on behalf of the Complainant submits as follows.

The Complainant has been employed by the Respondent since in or about June 2007. The Complainant’s last assignment began on 5th June 2021 as a Temporary Lifeguard through the provision of Fixed Term Contract, the 14th such contract provided to the Complainant. The Complainant was re-employed annually until March 2022, when he was informed that the Respondent would not be proceeding with his application for the coming year.

The Complainant alleges that he did not receive his public holiday entitlements.

SIPTU submits that the Respondent was subject to Workplace Relations Commission inspection in 2020 in terms of irregularities regarding Sunday premium, public holidays and other matters. The inspection uncovered that the Respondent did not pay Sunday premium nor applied the benefits of public holidays to the Lifeguards. The Respondent was requested to correct, what was a clear breach of the Organisation of Working Time Act 1997, with immediate effect. The Respondent corrected the inconsistency and also paid the retrospective element to the Lifeguards. The inspection resulted in payments for public holidays in accordance with the Act and established a rate for Sunday premium as time and a half. These arrangements continued until 2020. However, in 2021 the Respondent made a unilateral decision to deviate from the existing agreed arrangements and requirements and acted in contravention of the Act in terms of public holidays benefits and Sunday pay.

The Complainant’s Lifeguard assignment in the year 2021 began on 5th June, in advance of the 7th of June public holiday. Despite the requirements under the Act and the WRC inspection, the Respondent did not pay the Complainant his public holiday entitlements as set out in the Act. The Complainant worked on 7th June 2021 and did not receive his public holiday entitlement. The Complainant asserts that he is owed €112.49.

Direct evidence and cross-examination of Mr. Timmons, the Complainant

The Complainant said that he had worked for the Respondent every season for many years as a Lifeguard and Senior Lifeguard. He worked at the busiest beach in the country. He had a team of 4-6 lifeguards reporting to him. Mr. Timmons said that he used to be paid extra “large beach pay” which was removed following the issue with the public holidays and Sunday premium.

Mr. Timmons said that, after the WRC inspection, in the 2020 season the matter of Sunday premium and public holidays was rectified and arrears were paid. In the 2021 season, the Respondent removed the time and a half Sunday premium payment, double pay for June public holiday and large beach pay. Mr. Timmons said that he raised the issue locally with his line manager, payroll, and involved SIPTU.

Summary of Respondent’s Case:

LGMA, on behalf of the Respondent submits as follows.

The Complainant was employed as a Temporary Beach Lifeguard with the Council from 5th June 2021 until 11th September 2021 per his contract of employment. The Complainant was employed as a temporary employee in the role of Beach Lifeguard and did so similarly on a number of occasions previously relating to the temporary needs of the Council for Beach Lifeguards which arises during the summer months between June and September.

In relation to this complaint, it is noted that the WRC complaint was submitted on 10th September 2021 where the cognisable period is 6 months prior to the complaint being submitted to the WRC. The Complainant began employment on 3rd June 2021 with the June public holiday falling on Monday 7th June 2021.

Section 21 of the Organisation of Working Time Act 1997 details entitlements in relation to public holiday at section 21 (1) where section 21 (4) states;-

(4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee…unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.

The Complainant had only started with the Respondent two days prior to the public holiday and had not worked 40 hours in the period prior to the public holiday and was therefore not entitled to the public holiday payment in accordance with the Act.

Findings and Conclusions:

The Complainant alleges that he did not receive his public holiday entitlements for the public holiday that fell on 7th June 2021.

Section 21 of the Organisation of Working Time Act, 1997 provides as follows;-

21. Entitlement in respect of public holidays

(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day's pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

(2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at...

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