FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : HEADWAY SECURITY SERVICES LIMITED - AND - PETER FINN DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision No: r-147500-wt-14/JW
BACKGROUND:
2. This is an appeal by the worker of Rights Commissioner's Decision No: r-147500-wt-14/JW made pursuant to Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 14th August 2015. The following is the Court's Recommendation:
DETERMINATION:
This is an appeal by the worker against the Decision of a Rights Commissioner in a claim made by Mr. Peter Finn (the Complainant) against his employer, Headway Security Services Limited (the Respondent) under the Organisation of Working Time Act, 1997 (the Act).
The Complainant submitted complaints alleging breaches by the Respondent under Sections 19, 20 and 21 of the Act. The Rights Commissioner found that the complaints were well founded in part and awarded the Complainant the sum of €386.98 in respect of underpayment for annual leave and public holidays, calculated at the overtime rate of pay.
The Complainant appealed the Rights Commissioner’s Decision on the basis that the award was based on an overtime rate instead of his basic rate of pay, that there was no clarification on how the Respondent calculated pay for annual leave and that he did not receive his holiday pay in advance of his annual leave contrary to the provisions of the Act.
Background
The Complainant has been employed as a Security Officer with the Respondent since
14thDecember 2004. His normal working hours are 39 ½ hours per week - Monday 13 ¼ hours, Wednesday 13 ¼ hours, Thursday 9 hours and Saturday 4 hours per week. He was paid €10.75 per hour. He also worked varying overtime hours for which he was paid at an overtime rate of €16.17 per hour. He referred his complaints under the Act to the Rights Commissioner on 11thAugust 2014.
Summary of The Complainant’s Case
The Complainant submitted that he was entitled to be paid for annual leave based on his actual hours worked including overtime hours worked whereas the Respondent had calculated his annual leave pay at 8 hours per day. Therefore he submitted that it did not calculate his annual leave pay correctly. He also claimed that the Respondent did not pay him his annual leave pay in advance of his holidays.
Furthermore, he claimed that in respect of four public holidays, 17thMarch 2014, 21stApril 2014, 5thMay 2014 and 2ndJune 2014 he was not paid the correct public holiday payment. He also claimed that he had not been paid at all in respect of the public holiday which fell on 4thAugust 2014.
Summary of the Respondent’s Position
The Respondent submitted that the Complainant was paid 20 days annual leave per annum averaged over 13 weeks preceding the leave at his basic rate of pay, i.e. 8 hour basic pay per annual leave day.
The Respondent accepted that the Complainant had not been paid for the public holiday which fell on 4thAugust 2014 and was willing to do so pending the completion of this case. In respect of the remaining public holidays referred to, the Respondent contended that it was entitled to choose the mode of compliance with section 21 of the Act, and decided to give the Complainant a paid day off on the day, calculated on the basis of“an extra day’s annual leave”,therefore the Complainant was paid an average day’s pay, 8 hours pay, for each of these public holidays.
The Respondent produced records of payments made to the Complainant for annual leave and public holidays.
Conclusions of the Court
Annual Leave
The calculation of pay for annual leave and public holidays is governed by the Organisation of Working Time (Determination of Pay) Regulations 1997, S.I. 475 of 1997 (the Regulations). Regulation 3(2) prescribes the formula for the calculation of the rate payable in respect of annual leave in the case of an employee whose pay is calculated by reference to a fixed hourly rate. It provides as follows: -
(2) If the employee concerned’s pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be 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) that is paid in respect of the normal weekly working hours last worked by the employee.
The Court is satisfied that although he worked varying overtime hours per week, the Complainant’s normal weekly basic working hours did not vary for which he was pay a fixed hourly rate of pay. The Court is satisfied that based on the Complainant’s normal hourly rate of pay he was paid the appropriate rate of pay for annual leave taken between 1stApril 2013 and 11thAugust 2014.
Having examined the records the Court is satisfied that the Complainant was paid annual leave payment in advance of his holidays.
Therefore the Court finds that the Respondent did not contravene section 19 and 20 of the Act, and therefore the Complainant’s claim under those sections is not well founded.
Public Holidays
The Respondent stated that the Complainant’s public holiday payment was calculated over the previous 13 weeks worked which resulted in an average payment of 8 hours per day.
Section 21 of the Act, provides 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-
(b) a paid day off within a month of that day,
(c) an additional day of annual leave,
(d) an additional day's pay
All of the public holidays referred to in the Complainant’s complaint fell on a Monday. The Complainant did not work on each of these days as the premises were closed for the day. It is clear to the Court that by affording the Complainant“a paid day off on that day”, the Respondent complied with subsection (1) above. If the Complainant were to receive 8 hours pay for that day as contended for by the Respondent and not his normal 13 hours pay, then he would have received partial payment for the day and not his normal day's pay. It is clear that the provisions of the Act are designed to benefit the employee for public holidays and not to disadvantage them.
Therefore in these circumstances from the plain wording of the subsection it is clear that the Complainant is entitled to a be paid at the same rate in respect of public holidays as that paid to him while at work. Accordingly the Court finds that the Complainant has incurred a shortfall of 5 hours in respect of each of the four public holidays claimed. Furthermore as it is not disputed that the Complainant was not paid for the public holiday which fell on 4thAugust 2014 he is entitled to 13 hours pay in respect of that day. Therefore he has incurred a shortfall of 33 hours pay which equals to a total of €354.75.
The Court finds that by not providing the Complainant with the correct public holiday benefit the Respondent contravened section 21 of the Act and finds that the Complainant’s claim is well founded.
Determination
For the reasons referred to above the Court is satisfied that the Respondent did contravene the Organisation of Working Time Act 1997 in relation to the Complainant.
The Court determines that the Complainant should be paid the sum of €354.75 within six weeks of this Determination. The Complainant’s appeal is allowed in part. The decision of the Rights Commissioner is set aside and substituted with this Determination.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
25th August 2015______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.