FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : LEITRIM COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT SERVICES BOARD) - AND - ALAN MARTIN (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appealing against Rights Commissionr's Decision R-051658-Wt-07-Sr
BACKGROUND:
2. This case is an appeal by the employer of Rights Commissioner's Decision R-051658-Wt-07-Sr. The issue concerns an employee of Leitrim County Council who
was on certified sick leae over the Christmas Holidays in 2006.
There were three Public Holidays during the period of the workers absence which were paid for as Public Holiday benefit rather than Sick Leave. The workers position is that the leave should have been classified as sick leave and that entitlements with respect to the Public Holiday be claimed at a later date.
The matter was referred to a Rights Commissioner for investigation. His Decision issued on 3rd June, 2008 and found that the complaint was well founded. The worker was awarded €500 in compensation and his Public Holiday entitlements under the Organisation of Working Time Act, 1997.
On 11th June, 2008 the employer appealed the Rights Commissioner's Decision in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 17th February, 2009.
UNION'S ARGUMENTS:
3 1 The worker was on certified sick leave during the Public Holidays that occurred during the Christmas period in question. As he was sick, he was not in a position to benefit from his Public Holiday entitlements.
2 The worker shoud have been paid sick leave for the period in question and have his public holiday entitlement applied at a future date.
COMPANY'S ARGUMENTS:
4 1 The worker received paid days off for the three days in question which were not offset against sick leave entitlements.
2 The practice of Leitrim County Council is to apply Public Holiday entitlements to workers who may be absent on sick leave on Public Holidays. It does not offset the leave against entitlements under the Sick Pay Scheme.
DETERMINATION:
This is an appeal by Leitrim County Council against the decision of a Rights Commissioner in a claim by Mr Alan Martin under the Organisation of Working Time Act 1997. The claim arose from the decision of the Respondent to grant the Claimant three days off with pay, in respect of public holidays which fell at Christmas 2006. At that time the Claimant was on sick leave.
The facts
The Claimant was on sick leave between 11th December 2006 and 5th January 2007. He was paid pursuant to the Respondent’s sick pay scheme in this period, except in respect of 25th, 26th December 2006 and 1st January 2007. These days were paid as public holidays.
The Court was told that the normal practice of the Respondent is not to provide sick leave in respect of public holidays. Where an employee is sick on the day on which a public holiday occurs the employee is paid a days pay on the public holiday and that day is not offset against the employees annual allocation of sick leave.
In the instant case the Claimant in fact exhausted his entitlement to sick-pay. He obtained the benefits of the public holidays in question in that his sick pay was extended by three days to reflect the fact that the three days at issue were not regarded as days of sick leave.
Position of the Parties
The Claimant
The Claimant contends that he is entitled to three days leave in lieu of the public holidays since he was on sick leave at the time at which they occurred. He relies on the Determination of this Court inThermo King and Pat Kenny(Determination DWT0611) in support of this contention. He also relies on the Determination of the Court inHSE West and Alison Meehan(Determination DWT0884), which was to similar effect. The Claimant further contends that the decision of the Respondent to grant him a day off in respect of the public holiday while he was on sick leave did not afford him an opportunity for rest and relaxation, as is required under the Act.
The Respondent
The Respondent submitted that unlike the cases referred to, there was no question of the Claimant’s entitlements in respect of the public holidays being subsumed in his sick-pay entitlement. It was further submitted that the consistent practice of the Respondent was to operate the scheme in which it had been applied in this case.
Conclusion of the Court
The case turns on the construction of s.21(1) of the Act of 1997, and its application to the facts.
Section 20 of the Act provides that annual leave must be granted at a time which affords an employee opportunity for rest and relaxation. This is based on the requirement of Directive 93/104/EC.
However there is no corresponding requirement under the Act in respect to public holidays. Moreover, Directive 93/104/EC relates only to annual leave and does not deal with entitlements in respect to public holidays. The entitlements of an employee in that regard are governed solely by domestic law.
Section 21(1) provides, in effect, that where an employee is entitled to a day off with pay on a day on which a public holiday occurs, otherwise than by reason of it being a public holiday, he or she is entitled to one of the other benefits prescribed by s. 21(1) of the Act. Those alternative benefits are:-
•An extra days pay,
•A day off within a month,
•An additional days annual leave.
InThermo Kingthe Court held that the relevant provision of s.21(1) comes into play where a term, expressed or implied, in an employees contract of employment entitles him or her to sick pay on a day on which a public holiday occurs. In the instant case the Court was told that the Respondent does not pay sick pay in respect of a public holiday. Rather, an employee is provided with a days pay in respect of the holiday in discharge of the Council’s obligation under the Act. That payment is not offset against the employee total entitlement to sick leave. In these circumstances it could not be held that the Claimant had a contractual entitlement to a paid day off on the public holidays, independently of the Act.
In this case the employee in fact received his total entitlement under the sick pay scheme and in addition received three days pay in respect of the public holidays in issue.
In these circumstances the Court cannot see how the Respondent could be held to have contravened the Act.
Determination
Accordingly the appeal is allowed and the Decision of the Rights Commissioner is set aside.
Signed on behalf of the Labour Court
Kevin Duffy
2nd March 2009______________________
AHChairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.