FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : CHESHIRE IRELAND (REPRESENTED BY ASKHR SOLUTIONS) - AND - MARGARET GALLAGHER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms O'Donnell |
1. Appeal of Adjudication Officer Decision No. ADJ00000539.
BACKGROUND:
2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on the 20 April 2016 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 7 July 2016. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Cheshire Ireland against a Decision of an Adjudication Officer under the Organisation of Working Time Act, 1997 (the Act). Ms Margaret Gallagher submitted a complaint against her employer alleging a breach of Section 21 of the Act in relation to the calculation of public holiday entitlements. The Adjudication Officer held that the claim was well-founded and that the employer was in breach of the Act. The Employer appealed the Decision to this Court.
For ease of reference the parties are given the same designation as they had at first instance. Hence Ms Margaret Gallagher will be referred to as “the Complainant” and Cheshire Ireland will be referred to as “the Respondent”.
The Complainant referred her claim under the Act to the Workplace Relations Commission on 12thNovember 2015 therefore the cognisable period covered by her claim is the six-month period from 13thMay 2015 until 12thNovember 2015.
Background
The Complainant works nineteen hours per week and works 7 ½ hours per day on Mondays and Tuesdays and 4 hours on Fridays. She is paid €18.96 per hour.
Summary of the Complainant’s Case
Ms Fidelma Carron, SIPTU on behalf of the Complainant, submitted that the Respondent was incorrectly applying S.I. 475/1997 Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 (the Regulations). She said that when the Complainant is rostered on a public holiday and has the day off her public holiday is calculated at one fifth of her weekly working hours. This is added to her total annual leave entitlement. On public holidays which fall on a non-rostered day the Complainant is similarly given the benefit of additional annual leave calculated at one fifth of her weekly working hours.
Summary of the Respondent’s Position
Brendan McCarthy, Askhr Solutions, on behalf of the Respondent, stated that in the interest of fairness and equity it is the policy of the employer to award an extra day’s annual leave to employees who work less than the normal working hours per week. Therefore, it calculates an extra day’s annual leave based on one fifth of the weekly working hours in respect of each public holiday regardless of whether they are rostered on that day or not.
Mr McCarthy stated that the Respondent appealed the Adjudication Officer’s Decision on the basis that it would result in an inequitable and disproportionate awarding of public holidays to its employees.
Conclusions of the Court
Section 21 of the Act provides an entitlement to employees to a paid day off on the day; a paid day of within a month; an additional day’s annual leave or an additional day's pay in respect of a public holiday, as the employer decides. Section 22 makes supplemental provisions in relation to public holidays and provides that aday's payis to be calculated in accordance with the Regulations made for that purpose.
The combined effect of Sections 21 and 22 of the Act is that an employee is entitled to a day off with pay or an additional day's pay in respect of a public holiday at a rate calculated by reference to the Regulations.
The Complainant contends that her public holiday entitlement is calculated at one fifth of her weekly contracted hours, regardless of when the public holiday falls and that therefore she is not receiving her full entitlement in accordance with the Regulations.
The Law
Section 21 of the Act provides that an employee is entitled to a day off with pay on the day on which a public holiday falls if he or she is rostered to work on the day and does not work. Where the employee works on the public holiday, or it is normally a rostered day off he or she is entitled to one of the other compensatory options provided for by the Section including an additional day’s pay (or an additional day’s annual leave or a day off within a month). The relevant rate of the additional day’s pay is calculable in accordance with Regulation 5(2) of the Regulations which provides for the payment of an amount equal to one-fifth of a week’s pay in addition to the employee’s normal pay. Thus in such a situation the employee concerned would receive an additional payment in the pay week in which the public holiday occurs.
In relation to pay for public holidays the Regulations provide: -
- 4. The following, namely—
- (a) the rate at which an employee is paid in respect of a day off under section 21 of the Act,
(b) the rate of an employee's additional day's pay under that section, and
(c) the appropriate daily rate of the employee's pay for the purposes of section 23 of the Act,
- (a) the rate at which an employee is paid in respect of a day off under section 21 of the Act,
- 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,
(b) not applicable
(2) If the employee concerned (not being an employee to whom paragraphs (a), (b) and (c) of Regulation 6 of these Regulations apply) does not work on a day which is a public holiday, then—
(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 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 in respect of the normal weekly hours last worked by the employee before that public holiday,
(b) not applicable
The clear purpose of the relevant provisions of the Regulations is to ensure that during public holidays an employee receives no less (or no more) than he or she would have received if he or she was working during the period in question. That general principle formed theratioof a number of decisions of the CJEU notably Case C-155/10,Williams v British Airways plc[2010] IRLR 948 and Case C-539/12,Lock v British Gas Trading Limited[2015] 3 IRLR 438. That was also the principle applied by this Court inHidden Hearing Limited and Smart[2005] 16 ELR 367.
The application of Regulation 5(1)(a) requires an interpretation of what is meant by the expression “normal daily hours last worked by the employee” as is appears in that paragraph.
Regulation 5(2) provides that if the public holiday falls on a day on which the Complainant is not rostered to work and does not work e.g. Monday, Friday, Saturday and Sunday, the appropriate rate is one-fifth of a week's pay.
- The Complainant’s patterns of work:-
It is not in dispute that the Complainant’s weekly rate of pay does not vary and that she does not work on public holidays.
The Complainant’s normal patterns of work are that she works 7 ½ hours per day on Mondays and Tuesdays and 4 hours on Fridays. Therefore in accordance with Section 21of the Act she is entitled to a day off on days when the public holiday falls on a Monday, Tuesday or Friday, at her normal day’s pay for that day.
The Complainant does not normally work on Wednesdays and Thursdays and therefore in accordance with Regulation 5(2) when a public holiday falls on either of these days she is entitled to a “normal day’s pay” for which, in accordance with its provisions, the appropriate rate is one-fifth of a week's pay.
In the cognisable period covered by this claim, there were three public holidays, namely the June, August and October 2015 public holidays. The Respondent provided the Complainant with a choice in respect of her entitlement, she could either:-
- (i)be paid her normal day’s pay for the day (7.5 hours’ pay) in which case 7.5 hours was deducted from her annual leave, comprising the deduction of 3.8 hours granted in respect of the public holiday and a further deduction of 3.7 hours from her general annual leave entitlement of 23 days; or
(ii)be paid 3.8 hours for the day.
As each of the three public holidays in question fell on a Monday, the Complainant received one fifth of her weekly hours in the form of extra annual leave for each public holiday i.e. 3.8 hours. Therefore the Court is satisfied that the Complainant did not receive her full entitlement for the three public holidays in question. the deduction of 3.7 hours from her basic annnual leave does not satisify the requirments of the Act. Therefore the Court finds that the Complainant’s entitlement was 3.7 hours short on each of those three Mondays. Therefore the Complainant had a total shortfall of €210.46 for the cognisable period covered by the claim.
Determination
In the circumstances the Court finds that the Respondent was in breach of Section 21 of the Act on the three occasions in question and orders the Respondent to pay the Complainant the sum of €210.46 plus €1,000.00 in compensation, i.e. a total payment of €1,210.46 must be paid to the Complainant.
Accordingly, the Court does not uphold the Respondent’s appeal for the reasons stated above. The Court orders the Respondent to comply with Section 21 of the Act and to comply with S.I. 475 of 1997 entitledOrganisation of Working Time (Determination of Pay for Holidays) Regulations, 1997.
The Decision of the Rights Commissioner is varied accordingly.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
12 August 2016______________________
LSDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.