PTD143

FULL RECOMMENDATION

PTW/14/5

DETERMINATIONNO.PTD143

(R-141511-PT-14/EH)

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001

PARTIES :

SPARANTUS LTD T/A HIGHFIELD HEALTHCARE
(REPRESENTED BY COLLEEN CLEARY SOLICITORS)

- AND -

AGNIESZKA JEMIOLA
(REPRESENTED BY BLAZEJ NOWAK)

DIVISION :

Chairman: Mr Duffy
Employer Member: Ms Doyle
Worker Member: Ms Tanham

SUBJECT:
1. Appeal of Rights Commissioner's Decision R-141511-PT-14/EH

BACKGROUND:

2. The Worker referred her case to the Labour Court in accordance with Section 17(1) of the Protection of Employees (Part-Time Work) Act, 2001. A Labour Court hearing took place on 20th November, 2014. The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Agnieszka Jemiota (the Claimant) against the decision of a Rights Commissioner in her claim against her former employer, Sparantus Limited T/A Highfield Healthcare (the Respondent). The Claimant alleges that the Respondent contravened the Protection of Employees (Part-Time) Work Act 2001 (the Act) in relation to her. The claim is grounded on s.9 of the Act.

The Claim
The substance of the Claimant’s claim is that she suffered less favourable treatment in not receiving a benefit in respect of certain public holidays. The Claimant’s entitlements in that regard were calculated in accordance with s.21(4) of the Organisation of Working Time Act 1997 (the Act of 1997)

Section 21(1) of the Act of 1997 provides: -

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:
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.

Subsection (4) of s.21 of that Act provides: -

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 10 of the Act under which this claim is brought provides: -

10.—(1) The extent to which any condition of employment referred to in subsection (2) is provided to a part-time employee for the purposes of complying withsection 9(1) shall be related to the proportion which the normal hours of work of that employee bears to the normal hours of work of the comparable full-time employee concerned.
(2) The condition of employment mentioned in subsection (1) is a condition of employment the amount of the benefit of which (in case the condition is of a monetary nature) or the scope of the benefit of which (in any other case) is dependent on the number of hours worked by the employee.
(3) For the avoidance of doubt, neither this section nor any other provision of this Act affects the operation of Part III of theOrganisation of Working Time Act, 1997.

Section 21 of the Act of 1997 is contained in Part III of that Act. Section 10(3) of the Protection of Employees (Part-Time Work) Act 2001 makes it clear that no provision of that Act operates to offset or supplant any provision of the Act of 1997. Moreover, as found by the Rights Commissioner, the within claim is not grounded by reference to the treatment of any identifiable comparable full time employee.

Outcome
This claim is misconceived and cannot succeed.

The appeal is disallowed and the decision of the Rights Commissioner is affirmed.

Signed on behalf of the Labour Court

Kevin Duffy
27th November 2014______________________
SCChairman

NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.