FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : HSE WEST (REPRESENTED BY HSE EMPLOYER AGENCY) - AND - ALISON MEEHAN (REPRESENTED BY IRISH NURSES ORGAINISATION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Decision R-050914-WT-07/POB
BACKGROUND:
2. This case concerns an appeal by the Worker of Rights Commissioner's DecisionR-050914-WT-07/POB.The Worker was on paid sick leave from 27th July 2006 to 4th September 2006 inclusive, and received a day's pay in respect of the public holiday which occurred on 7th August 2006. The Claimant submits that this day's pay was pursuant to her entitlement under the HSE's sick pay scheme rather that her statutory entitlement underOrganisation of Working Time Act, 1997.The Worker referred this alleged infringement of the Organisation of Working Time Act, 1997 to a Rights Commissioner for investigation and a hearing was arranged for 3rd March, 2008. The Rights Commissioner's Decision was as follows:
- "The respondent’s case centres around the wording contained in Labour Court Determination No 0611 which stated 'It is clear to the Court that the payments which the claimant received in respect of the public holidays at issue were part of his entitlement to sick pay under a collective agreement. Accordingly the days in question were offset against the claimant’s total entitlement under the scheme'. The respondent’s core argument is that once it pays the claimant for the public holiday and does not offset the day against the claimant’s entitlements that it is in compliance with the Act and the its interpretation of LC No. 0611. However I believe the respondent has chosen to ignore the second part of the determination which stated:
- 'The Court is also satisfied that the situation which arose in this case comes within the ambit of subsections (1) and (6) of Section 21 of the Act, which 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 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/she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him/her in respect of the day or days in that period on which he/her is not required to work as well as the day/days in that period on which he/her is required to work.
The clear import of these provisions is that where an employee is otherwise entitled to a paid day off on a day which is a public holiday the granting of that day off with pay cannot subsume the employees statutory entitlement in respect of the public holiday.
The claimant was on paid sick leave on each of the public holidays at issue. Hence, apart from Section 21 (1), she was entitled under the collective agreement to a paid day off on those days. In these circumstances it is clear from the plain wording of the subsection that the claimant is entitled to a benefit in respect of the public holidays in addition to her entitlement to a paid day off on the day under the agreement. It follows that by not providing the claimant with such a benefit the respondent contravened the Act.'
It is my interpretation of the Court Ruling, that merely classifying the sick day as a public holiday and not taking the day from the claimant’s sick leave entitlements is not sufficient to discharge the respondent’s obligations under the Act. I find that the respondent should comply with the provisions of Section 21 in respect of the public holiday on August 7th 2006 by providing the complainant with (i) an additional day of annual leave or (ii) an additional days pay to be implemented at the employers discretion within six weeks of the date of this Decision". - 'The Court is also satisfied that the situation which arose in this case comes within the ambit of subsections (1) and (6) of Section 21 of the Act, which provide as follows:
The Company appealed this Decision to the Labour Court on 24th June, 2007, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 19th November, 2008.- "The respondent’s case centres around the wording contained in Labour Court Determination No 0611 which stated 'It is clear to the Court that the payments which the claimant received in respect of the public holidays at issue were part of his entitlement to sick pay under a collective agreement. Accordingly the days in question were offset against the claimant’s total entitlement under the scheme'. The respondent’s core argument is that once it pays the claimant for the public holiday and does not offset the day against the claimant’s entitlements that it is in compliance with the Act and the its interpretation of LC No. 0611. However I believe the respondent has chosen to ignore the second part of the determination which stated:
DETERMINATION:
This appeal relates to a claim by the INO on behalf of Ms Alison Meehan (the Claimant) for payment in respect of the August public holiday which occurred on 7th August 2006. The Claimant was on paid sick leave from 27th July 2006 to 4th September 2006 inclusive. The Claimant received a day's pay in respect of the day on which the public holiday fell. The Claimant contends that the pay which she received was pursuant to her entitlement under the HSE’s sick pay scheme rather than in respect of her statutory entitlement under the Organisation of Working Time Act 1997 (the Act). The HSE West (the Respondent) contends that the payment which the Claimant received in respect of the day in question was in discharge of her entitlement under the Act. It contends that the payment which she received was not offset against her entitlement to sick leave and that only four days were deducted from her total entitlement to sick leave in respect to the week in which the public holiday occurred.
The Court was told that following the Determination of this Court in Determination WTC0611Thermo King and Pat Kennya circular issued from the HES- EA advising that where an employee is absent on sick leave on a day which is a public holiday payment for the day should not be deducted from the employees total entitlement to sick leave. This circular was expressed to apply from 1st January 2007. The Respondent implemented this circular in respect of the Claimant by amending her sick leave record to show that payment made for 7th August 2008 was for the public holiday and was not deducted from her overall sick leave entitlements.
The question which arises in the instant case is similar to that which was considered by the Court inThermo King. In that case the Claimant was on sick leave at the time a number of public holidays occurred. Under his contract of employment he was entitled to be paid while on sick pay and was paid for the public holiday pursuant to the sick pay scheme. He claimed an entitlement in respect of the public holidays independently of the sick pay scheme. The employer argued that in paying the worker in respect of the public holiday, albeit under the sick pay scheme, it discharged it statutory obligation under the Act. This Court did not accept that submission. Having examined the provision of s.21 of the Act the Court concluded as follows: -
- The clear import of these provisions is that where an employee is contractually entitled to a paid day off on a day which is a public holiday the granting of that day off with pay cannot subsume the employee’s statutory entitlement in respect of the public holiday.
In this case a number of issues were raised by the parties in the course of their submissions in relation to the construction of various provisions of the Act. However, the net and only issue before the Court is the entitlement of this particular Claimant in respect of the public holiday which fell on 7th August 2006. This Determination should not be regarded as having any wider implication.
The Respondent submitted that that this case could be distinguished fromThermo Kingon the basis of a retrospective decision which it made to treat the payment which the Claimant received for the day in question as being in respect of her statutory entitlement under the Act rather than as a payment pursuant to the sick pay scheme.
The Court must decide this case by reference to what occurred at the time the Claimant was paid in respect of 7th August 2006. It is accepted that the payment was made pursuant to the sick pay scheme on foot of the Claimant’s contractual entitlement as it then stood. On that account, in accordance with s.21(1) of the Act, the payment of a day's pay on the day could not be regarded as having discharged the Respondent’s obligation to the Claimant under the Act. In that respect the issue arising in this case is the same as that which arose inThermo Kingin all material respects. It follows that the decision inThermo Kingshould be adopted in this case.
In these circumstances the Court is satisfied that the case was corrected decided by the Rights Commissioner. Accordingly the Decision of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
1st December, 2008______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.