ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000541

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 27/01/2016

Workplace Relations Commission Adjudication Officer: Shay Henry

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 27 of the Organisation of Working Time Act, 1997 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Complainant’s Submission and Presentation:

The complaint relates to the calculation of Public Holiday entitlement only. The second complaint CA – 822 – 002 has been withdrawn. The complainant has a contract for 19 hours per week and has a set pattern of days; Wednesday, Thursday and half day Tuesday. At the start of 2014 she was surprised to learn that she had a negative leave balance of 9 hours. When she queried the issue she was told that Public Holiday entitlements are calculated at one fifth of weekly contracted hours. As the complainant was not normally required to work on a bank holiday which fell on a day which otherwise she would normally work, she was paid full pay for the day but lost 3.7 hours from her total leave hours (based on 19 contracted hours per week).

Prior to 2013 when a public holiday when a public holiday fell on a normal rostered day she was paid a full day’s pay. On any other day she received one fifth of the weekly hours. Management acknowledge this but state that the public holiday was previously applied incorrectly. It is the claimant’s case that she works a set pattern of days each week and a normal day’s pay is based on 7.5 hours and therefore, when a public holiday falls on a day that she would normally be rostered to work, then the claimant is entitled to a normal day’s pay. To the claimant’s knowledge, she, and one other, are the only part-time staff who work set days.

Respondent’s Submission and Presentation:

Public holidays are awarded to all of the Respondent’s employees in line with the provisions of the Organisation of Working Time Act 1997 and S.I 475/1997 – Organisation of Working Time Act (Determination of Pay for Holidays). The Respondent’s Annual Leave and Public Holiday Policy provides for public holiday entitlements to be awarded to each employee at a rate of 1/5 of every employee’s contracted weekly hours. The entitlement is awarded for each of the 9 public holidays in a year and added to an employee’s annual holiday entitlement. An amount of 1/5 of every employee’s contracted weekly hours is awarded for each public holiday, irrespective of an employee’s roster or working pattern in order to provide for a fair and equitable awarding of entitlements to all staff. In the claimant’s case she is awarded 3.8 hours in respect of a public holiday i.e. 1/5 of contracted weekly hours. The same applies if the public holiday falls on a day when she is not normally rostered to work. The annual total for the claimant therefore is 34.2 hours in respect of public holidays. If the claimant’s case were conceded then for example in 2016 she would receive 38.1 hours which would be more than other part time employees not regularly on public holidays and result in an inequitable situation.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation complaint in accordance with the relevant redress provisions under Section 27(3) of that Act.

Issues for Decision:

The entitlements of the complainant in respect of public holidays.

Legislation involved and requirements of legislation:

Section 21 of the Organisation of Working Time Act, 1997 provides for entitlements in respect of public holidays. Subsections (1) and (6) of Section 21 of the Act, provide 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—( 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.(6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work.

Regulation 5 (1) (a) of the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 S.I No.475 of 1997, provides as follows:"5. (1) If the employee concerned works or is normally required to work during any part of the day which is a public holiday, then -

in case the employee's pay is calculated wholly by reference to any 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 that does not vary in relation to the work done by the employee but excluding pay for overtime) paid to the employee in respect of the normal daily hours last worked by him or her before that public holiday,......".

Conclusions:

The Labour court, in Revenue Commissioners and Gerard Doyle (DWT0625) made a determination in relation to issues relevant to this case.

In relation to Section 21 of the Act, the Labour Court stated that;

This section allows an employer to grant an employee a day off within a month in respect of the public holiday where the employee works on the public holiday or where the public holiday falls on a day which the employee would normally have off. This provides an alternative mode of providing a benefit for the holiday, but does not shift the public holiday itself.Based on this provision, the Court is satisfied that the employer may determine when the benefit will be provided. Where the public holiday falls on a Saturday or Sunday, Mondays are normally selected as the day when employees, who are otherwise off on those days, will benefit from the holiday entitlement.

Having reached this conclusion and applying the Law as outlined above the Court makes the following determination:

(a)The complainant’s entitlements where the public holiday falls on a day on which he is not required to work i.e. Saturday or Sunday

Regulation 5(2) provides that if the public holiday falls on a day on which the employee does not normally work e.g. Saturday and Sunday, the appropriate rate is 1/5th of a week's pay. Accordingly, on the basis that the transfer of the entitlement is merely an alternative mode of providing a benefit for the holiday, but does not shift the public holiday itself, the Court is satisfied that the complainant’s public holiday entitlement in such circumstances is one-fifth of a week's pay.

In the case before the Labour Court the claimant worked half days on Mondays and Fridays and full time on Tuesday, Wednesday and Thursday. The Court considered additional possibilities as follows;

(b)The complainant’s statutory entitlements where the public holiday falls on Mondays or Fridays

The employer accepts that the complainant's pay should be calculated wholly by reference to matters referred to in Regulation 3 (2) of the Regulations. The Court is satisfied that the complainant is normally required to work “during any part of the day” when a public holiday falls on a Monday or a Friday, and for this reason Regulation 5 (1) (a), which covers the relevant rate, should apply in his case. This provides that the complainant should be paid the amount payable in respect of the normal daily hours last worked prior to the holiday (excluding pay for overtime).Meaning of “ normal daily hours”The application of Regulation 5(1)(a) requires an interpretation of what is meant by the expression “normal daily hours last worked by him” as is appears in that paragraph. The term “normal daily hours” can have many shades of meaning. In the context in which it is used in the Regulations it can mean the hours routinely or regularly worked on a particular day or it can mean the hours worked on a day to which no special or particular arrangements apply. It could also mean the normal hours worked by the employee and averaged over a period of time. The Court is satisfied however that what appears not to be open on the language of the statutory provision is an interpretation which would fix an employee’s entitlement in respect of a Public Holiday by reference to the daily rate to which he or she would have been entitled had they worked on the day.Having examined his contractual working pattern, the Court is satisfied that in this case a special arrangement applies to the Complainant which results in his working week - 80% of the working time of a full-time member-being spread over five days, and therefore the hours worked on Mondays and Fridays cannot be regarded as his normal daily hours.Therefore, the Court is satisfied that a calculation of the complainant’s rate of pay for the purposes of his public holiday entitlement in respect of public Holidays which fall on Mondays and Fridays should be an average daily rate, based on his contracted working arrangement, i.e. 1/5th of his weekly rate of pay = 6.56 hours. However since the complainant already works for part of that day and is therefore already on paid time off for that part of the day the Court interprets this to mean that he is therefore entitled to be paid an extra 2.56 hours pay for such public holidays on the basis that he is already paid 4 hours for those days.

In the current case, if the public holiday falls on a Monday, the last day of work for the claimant is the previous Thursday during which she would work 7.5 hours. In these circumstances Sect 5(1) of the Act states that   ‘the relevant rate in respect of that public holiday shall be the sum that is equal to the sum paid to the employee in respect of the normal daily hours last worked by him or her before that public holiday’. ‘Normal’ implies consistency and therefore, in the case where daily hours vary, it is logical that 1/5 of the weekly hours should apply.

The final question the Labour Court determined was;

(c) The complainant’s statutory entitlement where the public holiday falls on any other day, Tuesdays, Wednesdays and Thursdays (The days on which the claimant in that case worked full hours)

The Court determined that ‘The complainant should receive a paid day off on that day’. Therefore the Court determined that the claimant in that case should get the full benefit by way of time off, for the hours actually worked on the days on which he was rostered for full hours.

The intent of Public Holidays is to convey a benefit on the employee. Section 21 (1) of the Act gives considerable discretion to the employer as to when the benefit may be taken. Where the public holiday falls on Saturday or Sunday for example, although in practice it is common to transfer the benefit to the Monday, there is not an obligation on the employer to do so. If the employer chooses to transfer the benefit to a day on which the complainant is rostered to work he or she may do so. However, to require the employee to take leave for part of that day on each occasion impacts negatively on the employee and he or she could not be said to have accrued the benefit fully as envisaged under the Act. Therefore, where the public holiday falls on, or is transferred by the respondent to, a day on which the complainant would normally be rostered, and if the complainant is then required not to work, she should be given the full day off with no reduction in annual leave.

Decision:

I have investigated the above complainant and make the following decision in accordance with Section 27 of the Organisation of Working Time Act, 1997 that;

1                     Where a public holiday falls on, or is transferred to, a day on which the complainant is not normally rostered to work she should receive an additional payment equivalent to one fifth of her contracted weekly hours.

2                     Where the public holiday falls on, or is transferred to, a day which the complainant would normally work, and if the complainant works on that day, she should receive an additional payment equivalent to one fifth of her contracted weekly hours.

3                     Where the public holiday falls on, or is transferred to, a day which the complainant would normally work, and if the complainant is required not to work on that day, she should receive full payment for that day (7.5 hours on Wednesday and Thursday, 4 hours on Tuesday), without any reduction in her leave.

4                     This decision should be implemented retrospectively since the date of the change in the previous practice in 2014.

Dated:   23/3/2016