FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : VARNA HEALTHCARE SERVICES LIMITED T/A SACRED HEART NURSING HOME (REPRESENTED BY O'MARA GERAGHTY MC COURT SOLICITORS) - AND - MS EILEEN MC ALEER (REPRESENTED BY UNITE) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision R-108608-WT-11/SR.
BACKGROUND:
2. The Employer appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 5th March, 2012. The Court heard the appeal on the 5th October, 2012, the earliest date suitable to the parties.
The following is the Determination of the Court:
DETERMINATION:
The Complainant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging breaches of Sections 19 and 21. The Rights Commissioner did not uphold the complaint under Section 19, he did find in her favour in respect of her claim under Section 21 and awarded the sum of €3,000.00.
The Employer appealed against the Rights Commissioner’s decision to grant an extension of time under the Act and appealed against the quantum of the award.There was no cross appeal. Both parties accepted that the appeal before the Court concerned the claim under Section 21 with regard to public holiday entitlement and did not encompass a claim under Section19.
For ease of reference the parties are referred to as they were at first instance. Hence Ms. Eileen McAleer is referred to as “the Complainant” and Varna Healthcare Services Limited is referred to as “the Respondent”.
Preliminary Issue – Application for Extension of Time
Section 27(4) provides, in effect, a time-limit of six months for the bringing of a complaint under the Act starting from the date of the contravention to which the complaint relates. The within complaint was presented to the Rights Commissioner on 29thMarch 2011. Hence, by application of the time-limit at Section 27(4), the Court can only have regard to contraventions found to have occurred on or after 30thSeptember 2010. However, Section 27(5) allows the Court to enlarge the time-limit by up to a further 12 months where reasonable cause is shown for the delay in referring the complaint to the Rights’ Commissioner. The Union on behalf of the Complainant applied to the Court for an extension of time in accordance with that provision.
The Union submitted that as the issue following local discussions, the issue was referred for conciliation to the Labour Relations Commission in July 2010 and when that failed to resolve the issue the claim was made under the Act and referred to the Rights Commissioner in March 2011. The Union accepted that there was no difficulty with public holiday entitlement up until January 2009. The Union submitted that the delay in referring the claim to the Rights Commissioner was due to internal restructuring with the Union.
The test for deciding if reasonable cause is shown for the purpose of the Act was considered by the Court inCementation Skanska (Formerly Kvaerner Cementation v CarrollLabour Court Determination WTC0338 (October 28, 2003). Here the Court said :-
- “It is the Court’s view that in considering if reasonable cause exists, it is for the Complainant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the Complainant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”
Section 27(5) of the Act allows the Court to extend the time for the bringing of a claim where reasonable cause for so doing is shown. It is well settled that it is for a Complainant seeking an extension of time to both explain the delay and put forward a reasonable excuse for the delay. In this case the Court is not satisfied that the Complainant has met that standard. Accordingly the Court determines not to extend the time for the bringing of the claim.
Background
The Complainant commenced employment with the Respondent as a Care Assistant During on 10thOctober 1998. Up until January 2007 she worked 40 hours over five days per week. From January 2007 she had worked on 12 hour shifts. The Complainant returned to full time days shifts in October 2011. During the relevant period the Complainant worked 12 hour shifts, 3 shifts on followed by 3 shifts off, she worked an average of 42 hours per week and was paid €9.57 per hour.
Section 21 Claim
The Union submitted that the Complainant had an outstanding entitlement to three public holidays.
The Respondent told the Court that its normal practice at the commencement of each calendar year was to provide four weeks annual leave plus nine public holidays so as to allow the Complainant the opportunity to plan and avail of leave throughout the year on that basis.
However, the Respondent told the Court that it since discovered that as the Complainant was a 12 hour shift worker, in accordance with Regulation 5(2) (a) of S.I. 475 of 1997 it was not paying her the appropriate rate on those days when she worked on a public holiday.
The Respondent stated that while the Complainant received an entitlement in respect of all public holidays, there were four public holidays which occurred within the relevant period covered by the claim that she did not received her correct public holiday payment in accordance with the Regulation, as she was paid for 8.4 hours (in addition to her day’s pay) when she should have been paid 12 hours for the public holiday entitlement. This amounted to a total underpayment to the Complainant for the four public holidays in question of €137.81.
The Respondent informed the Court that since the claim was submitted under the Act the employer is in full compliance with the Act.
Court Findings
The calculation of pay for public holidays is governed by the Organisation of Working Time (Determination of Pay) Regulations 1997, S.I. 475 of 1997 (the Regulations). Regulation 5 prescribes the formula for the calculation of the rate payable in respect of public holidays in the case of an employee whose pay is calculated by reference to a fixed hourly rate.
Regulation 5(1) (a) applies where a public holiday falls on a day on which the employee concerned normally works and 5(2) (a) in the case where an employee does not work on a day which is a public holiday. Both of these are the applicable in the case of the Complainant. They provide 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—
- ( a ) in case the employee's pay is calculated wholly by reference to any of the 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 the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) paid to the employee in respect of the normal daily hours last worked by him or her before that public holiday,
- ( a ) in the case the employee's pay is calculated wholly be reference to any of the 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 one-fifth of the sum 9including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) paid in respect of the normal weekly hours last worked by the employee before that public holiday,
The Court is satisfied that the Employer’s calculation of outstanding payment due is correct.
The Court has considered the Respondent's appeal of the Rights Commissioner's Decision, and in light of its findings decides to awards a sum of €300.00 for the breaches of the Act, this sum includes an element of compensation which the Court is satisfied in all the circumstances of this particular case, meets the criteria enunciated by the ECJ inVon Colson.
The Decision of the Rights Commissioner is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
22nd October 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.