Case Number: ADJ-00000541. Workplace Relations Commission

• Docket Number: ADJ-00000541
• Date: 01 March 2016
• Court: Workplace Relations Commission
• Parties: An Employee -v- An Employer

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000541

Complaint(s)/Dispute(s) for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00000822-001	12/11/2015
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00000822-002	12/11/2015

Date of Adjudication Hearing: 27/01/2016

Workplace Relations Commission Adjudication Officer: Shay Henry

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 27 of the Organisation of Working Time Act, 1997 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Complainant’s Submission and Presentation:

Public Holiday entitlement is calculated at one fifth of weekly hours instead of normal hours rostered to work.

Working 19 hours per week and annual leave is calculated on 15 hours p.w. which was previous contract. Additional 4 hours is calculated for annual leave purposes on a quarterly basis and paid as casual hours.

The complaint relates to the calculation of Public Holiday entitlement only. The second complaint CA – 822 – 002 has been withdrawn. The complainant has a contract for 19 hours per week and has a set pattern of days; Wednesday, Thursday and half day Tuesday. At the start of 2014 she was surprised to learn that she had a negative leave balance of 9 hours. When she queried the issue she was told that Public Holiday entitlements are calculated at one fifth of weekly contracted hours. As the complainant was not normally required to work on a bank holiday which fell on a day which otherwise she would normally work, she was paid full pay for the day but lost 3.7 hours from her total leave hours (based on 19 contracted hours per week).

Prior to 2013 when a public holiday when a public holiday fell on a normal rostered day she was paid a full day’s pay. On any other day she received one fifth of the weekly hours. Management acknowledge this but state that the public holiday was previously applied incorrectly. It is the claimant’s case that she works a set pattern of days each week and a normal day’s pay is based on 7.5 hours and therefore, when a public holiday falls on a day that she would normally be rostered to work, then the claimant is entitled to a normal day’s pay. To the claimant’s knowledge, she, and one other, are the only part-time staff who work set days.

Respondent’s Submission and Presentation:

Public holidays are awarded to all of the Respondent’s employees in line with the provisions of the Organisation of Working Time Act 1997 and S.I 475/1997 – Organisation of Working Time Act (Determination of Pay for Holidays). The Respondent’s Annual Leave and Public Holiday Policy provides for public holiday entitlements to be awarded to each employee at a rate of 1/5 of every employee’s contracted weekly hours. The entitlement is awarded for each of the 9 public holidays in a year and added to an employee’s annual holiday entitlement. An amount of 1/5 of every employee’s contracted weekly hours is awarded for each public holiday, irrespective of an employee’s roster or working pattern in order to provide for a fair and equitable awarding of entitlements to all staff. In the claimant’s case she is awarded 3.8 hours in respect of a public holiday i.e. 1/5 of contracted weekly hours. The same applies if the public holiday falls on a day when she is not normally rostered to work. The annual total for the claimant therefore is 34.2 hours in respect of public holidays. If the claimant’s case were conceded then for example in 2016 she would receive 38.1 hours which would be more than other part time employees not regularly on public holidays and result in an inequitable situation.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation complaint in accordance with the relevant redress provisions under Section 27(3) of that Act.

Issues for Decision:

The entitlements of the complainant in respect of public holidays.

Legislation involved and requirements of legislation:

Section 21 of the Organisation of Working Time Act, 1997 provides for entitlements in respect of public holidays. Subsections (1) and (6) of Section 21 of the Act, provide as follows:.—(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.(6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work.

Regulation 5 (1) (a) of the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 S.I No.475 of 1997, provides as follows: "5. (1) If the employee concerned works or is normally required to work during any part of the day which is a public holiday, then -

in case the employee's pay is calculated wholly by reference to any matters referred to in Regulation 3 (2) of these Regulations, the relevant rate in respect of that public holiday shall be the sum that is equal to the sum (including any regular bonus or allowance that does not vary in relation to the work done by the employee but excluding pay for overtime) paid to the employee in respect of the normal daily hours last worked by him or her before that public holiday, ......".

Conclusions:

The Labour court, in Revenue Commissioners and Gerard Doyle (DWT0625) made a determination in relation to issues relevant to this case.

In relation to Section 21 of the Act, the Labour Court stated that;

This section allows an employer to grant an employee a day off within a month in respect of the public holiday where the employee works on the public holiday or where the public holiday falls on a day which the employee would normally have off. This provides an alternative mode of providing a benefit for the holiday, but does not shift the public holiday itself. Based on this provision, the Court is satisfied that the employer may determine when the benefit will be provided. Where the public holiday falls on a Saturday or Sunday, Mondays are normally selected as the day when...