DWT12140

FULL RECOMMENDATION

WTC/12/127

DETERMINATIONNO.DWT12140

(R-111142-WT-11/MMG)

SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997

PARTIES :

RFG IRELAND LTD T/A BB'S COFFEE & MUFFINS

- AND -

MS SANDRA LUKIANSKAITE
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES)

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Ms Doyle
Worker Member: Ms Ni Mhurchu

SUBJECT:
1. Appeal of Rights Commissioners Decision No: r-111142-wt-11/MMG

BACKGROUND:

2. This case concerns an appeal by the worker of Rights Commissioners Decision No: r-111142-wt-11/MMG. The issue concerns a claim by the worker that she was entitled to a payment for a Public Holiday that occurred in the week following the cessation of her employment. The matter was referred to a Rights Commissioner for investigation. His Decision issued on the 22nd May, 2012 and found in favour of the complaint. On the 30th May 2012, the worker appealed the Rights Commissioners Decision in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 23rd August, 2012. The following is the Court's Determination:

DETERMINATION:

This is an appeal by Ms Sandra Lukianskaite (”the Complainant”) against a Decision of the Rights Commissioner dated 22^ndMay 2012 in her claim against her former employer RFG Ireland Limited t/a BB’s Coffee and Muffins (the “Respondent”) under the Organisation of Working Time Act 1997 (the Act). The Rights Commissioner found in favour of the Complainant’s claim and awarded the sum of €100 in compensation.

The Complainant appealed against the quantum of compensation awarded. There was no cross-appeal by the Respondent.

The Complainant submits that, contrary to the provisions of Section 23(2) of the Act, she did not receive her entitlement in respect of the public holiday which fell on 6^thJune 2011.

The Complainant was employed by the Respondent on a temporary contract from 23^rdFebruary 2011 until 1^stJune 2011, covering for an employee on maternity leave. The Complainant was contracted to work between 10 and 20 hours per week and worked on average 17 hours per week. Her contract came to an end and her employment terminated on 1^stJune 2011. Monday 6^thJune 2011 was a public holiday.

Summary of the Complainant's Case

Mr Richard Grogan, Richard Grogan & Associates, Solicitors, on behalf of the Complainant submitted to the Court that when the Complainant’s employment ceased on 1^stJune 2012, she should have been granted an entitlement to a public holiday entitlement in respect of the public holiday which occurred on the Monday following the termination of her employment. He submitted to the Court that as the Complainant was contracted to work between 10 and 20 hours per week that she fulfilled the criteria for entitlement to public holidays under Section 21(4) which became due on the cesser of her employment in accordance with Section 23(2) of the Act.

Summary of the Respondent's Position

Ms F�ona O’Connor, Tom Smyth & Associates on behalf of the Respondent submitted that as the Complainant did not did not work 40 hours in the 5 week period prior to the public holiday she had no entitlement to the public holiday which fell on 6^thJune 2012. Furthermore, as the Complainant’s last day of work was 26^thMay 2011 she did not satisfy the conditions laid down in the Act. In the 5 week period prior to the termination of her employment the Complainant worked the following hours:

Week ending 5^thJune 2011 no hours worked
Week ending 29^thMay 2011 5.75 hours
Week ending 22^ndMay 2011 3.75 hours
Week ending 15^thMay 2011 5 hours
Week ending 8^thMay 2011 17.75 hours

The Respondent stated that the reason for the drop in hours prior to the termination of her contract of employment was due to seasonal factors coupled with the return of an employee from maternity leave.

Findings of the Court

It was accepted by the Complainant that she did not work the necessary 40 hours in the 5 weeks period preceding the public holiday however, it was submitted that her contractual hours brought her within the scope of Section 23(2) of the Act.

Section 21 of the Act states: -

21.—(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

Subsection (4) of Section 21 states:

Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time 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.

Section 23(2) of the Act provides

23. (2) Where—
- (a) an employee ceases to be employed during the week ending on the day before a public holiday, and
  (b) the employee has worked for his or her employer during the 4 weeks preceding that week, the employee shall, as compensation for the loss of his or her entitlements under section 21 in respect of the said public holiday, be paid by his or her employer an amount equal to an additional day's pay calculated at the appropriate daily rate.

The Court finds that the Complainant worked for her employer during the 4 weeks preceding the weekending on the day before a public holiday, however, as a part time worker she must have qualified for the public holiday entitlement, as provided for under Section 21(4) to be owed an entitlement at the time of cesser of employment. This raises the question of whether contractual hours can be considered as “worked” hours.

Definition of Working Time

Section 2(1) of the Act contains the following definitions: -

“working time” means any time that the employee is—

(a) at his or her place of work or at his or her employer's disposal, and
(b) carrying on or performing the activities or duties of his or her work,
and “work” shall be construed accordingly.

Article 2 of the Directive contains the following definitions: -

1. working time shall mean any period during which the worker is working, at the employer's disposal and carrying out his activity or duties, in accordance with national laws and/or practice;

Based on the definitions in both the Directive and the Act, the Court is satisfied that only time actually worked is taken into account in determining “working time” for the purposes of the Act and a contractual liability has no bearing on the matter.

The CJEU has considered the application of the definition of working time in a number of cases before it. Many were concerned with the application of the Directive to cases involving on-call arrangements which are not directly relevant in the instant case, nevertheless, they provide useful guidance when considering what is ‘working time’.

Case C-303/98Sindicato de M�dicos de Asistencia P�blica (SIMPA) v. Conselleria de Sanidad y Consumo de la Generalidad Valenciana[2000] IRLR 845, concerned the working hours of doctors in Spain, raised issues as to the treatment of time on-call for the purposes of the Directive. The Court held that where the Doctors were required to be present at the medical centre, and available to perform work if required, the time in question was working time even thought they were not actually working. It thus held that a contractual requirement to be present at a particular location together with a contractual liability to perform work if required brings the period at attendance within the notion of working time.

In the instance case the circumstances are entirely different and the contractual liability to work between 10 and 20 hours per week does not require the Complainant to be present at a particular location.

In case C-14/04Dellas and others v. Premier Ministre and another[2003] IRLR 225, the Court had to consider the compatibility with the Directive of a French system whereby time spent at work was weighted by reference to the intensity of the activity undertaken. In holding that the system in issue did not comply with the Directive the Court held that: -

“Working time” within the meaning of the Working Time Directive means any period during which the worker is working, at the employer's disposal and carrying out his activity or duties, as opposed to “rest periods”, the two being mutually exclusive. The Directive does not provide for any intermediate category between working time and rest periods. Nor is the intensity of the work done by the employee and his output among the characteristic elements of the concept of “working time” within the meaning of the Directive.

The Court is satisfied that time during which a person is working, at the employer's disposal and carrying out his or her activity or duties is working time, and time during which a person is at a place designated by his or her employer, and is required to undertake his or her activity or duties if directed to do so by the employer, is working time.

It is common case that the Complainant did not work the requisite number of hours required to qualify for a public holiday entitlement under Section 21 of the Act. The Court is satisfied that the Act refers to hours worked and not contracted hours and the Complainant advances no authorities for the notion that it should consider contracted hours when considering her entitlement under Section 21 of the Act.

The Court has found that the Complainant has not satisfied the conditions precedent for qualification to a public holiday under Section 21 and consequently does not qualify under Section 23 of the Act, therefore the Court does not find in her favour.

Determination

The Court overturns the Decision of the Rights Commissioner for the reasons outlined above. The Complainant’s appeal fails.

The Court so Determines.

Signed on behalf of the Labour Court

Caroline Jenkinson
7th September 2012______________________
AHDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.