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 - KATHLEEN DONAGHEY (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. ADJ00000541.
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 Kathleen Donaghey 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 Kathleen Donaghey 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 was the six-month period from 13thMay 2015 until 12thNovember 2015.
Background
The Complainant works nineteen hours per week and works 4 hours on Tuesdays and 7½ hours per day on Wednesdays and Thursdays. 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 holidays is calculated at one fifth of her weekly working hours. This is added to her total annual leave entitlement. On public holiday 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 S.I 475/97 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 on Tuesdays for four hours per week and on Wednesdays and Thursdays she works 7.5 hours on each of those days. Therefore in accordance with Section 21 of the Act she is entitled to a day off on days when the public holiday falls on a Tuesday, Wednesday or Thursday, at her normal day’s pay for that day.
The Complainant does not normally work on Mondays and Fridays and therefore in accordance with Regulation 5(2) 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. In the submissions made on the Respondent’s behalf the Court was told that the Complainant received additional annual leave based on one fifth of her weekly hours for each of the public holidays in question. Furthermore, this extra annual leave is given regardless of whether the Complainant is expected to work on the public holiday or not. In such circumstances the Court is of the view that the Respondent’s application of one fifth of her weekly hours would not fulfil the Complainant’s statutory entitlement, as in accordance with Section 21 of the Act where a public holiday falls on a day she is normally rostered to work she is entitled to a paid day off on the day.
However, as each of the three public holidays in the cognisable period for the purposes of this claim fell on a Monday, the Complainant received one fifth of her weekly hours in the form of extra annual leave for each of the public holiday i.e. 3.8 hours. Therefore the Court is satisfied that the Complainant received her statutory entitlement for the three public holidays in question.
Determination
In the circumstances the Court is satisfied that the Respondent did not contravene Section 21 of the Act on the three occasions in question.
Accordingly, the Court upholds the Respondent’s appeal for the reasons stated above.
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.