Complainant

Respondent

Anonymised Parties

A Forklift Driver

A Wholesale Company

Representatives

Gerard Kennedy SIPTU

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00013191-001

18/08/2017

The Complainant has been employed by the Respondent since 1^st September 1994. He is a forklift driver. He works 39 hours a week and is paid 590 gross a week. The Complainant claims that he did not receive his public holiday entitlements for the public holiday falling on the 17^th March 2017.

At the time the adjudication was scheduled to commence, it became apparent that there was no appearance by or on behalf of the Respondent. I am satisfied that the Respondent was notified of the venue, date and time of the hearing. I waited some time to accommodate a late arrival.

SIPTU on behalf of the Complainant submits that his hours of work are as follows: Monday: 7am-6pm (10 hours) Tuesday: 8am-6pm (9 hours) Wednesday: 8am-6pm (9 hours) Thursday: 8am-6pm (9 hours) Friday: 8am-10am (2 hours)

The Complainant submits that the above hours have been in place by agreement since 2011 to facilitate the needs of the business and give a full working week of 39 hours. These are not the standard hours for full time staff who normally work an 8-hour day Monday to Thursday with the remaining 7 being worked on Friday to accrue 39-hour week. The standard working practice for full time staff when a public holiday falls on Friday is to work a 7-hour day on Thursday and receive a paid 8-hour day off on the public holiday. In the lead-up to the 17^th March 2017 the Complainant sought to move his Friday working arrangements to the Thursday (i.e. working 2 hours on Thursday). This request was denied and the Complainant was advised that if he made an issue of this matter the Respondent would have to consider his working hours. The position of the management has created a situation whereby the Complainant was required to work 37 hours that week to achieve a payment for 39 hours while his full-time colleagues were able to work 31 hours that week to for the same benefit. The Complainant contends that not only is the Respondent’s position unreasonable but constitutes a breach of Section 21 of the Organisation of Working Time Act, 1997 and S.I. 475/1997 Organisation of Working Time (Determination of Pay for Holidays) Regulation 1997.

The Complainant claims that he is entitled to a payment for public holiday as per the above-mentioned legislation.

The Respondent did not attend the hearing or provide any explanation for failure to do so.

Section 21 of the Organisation of Working Time Act, 1997 stipulates 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.

Reg 5 of Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997

(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 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 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) in any other case, the relevant rate in respect of that public holiday shall be the sum that is equal to one-fifth of the average weekly pay (excluding any pay for overtime) of the employee calculated over—

(i) the period of 13 weeks ending immediately before that public holiday, or

(ii) if no time was worked by the employee during that period, the period of 13 weeks ending on the day on which time was last worked by the employee before that public holiday.

Provided that the relevant rate to which the employee concerned shall be entitled under this paragraph in respect of a public holiday shall not exceed the relevant rate to which he or she would be entitled in respect of that holiday if subparagraph (a) or (b), as the case may be, of paragraph (1) of this Regulation were to apply to him or her.

Payslip produced by the Complainant at the hearing shows that he is paid €586.95 a week and that he was paid for two hours in respect of the public holiday entitlement.

Based on the uncontested evidence I find that the Complainant is entitled to 1/5 of his normal working week i.e. 7.8 hours in respect of the public holiday benefit.

Based on the uncontested evidence presented at the hearing I find the complaint well- founded.

I require the Respondent to pay the Complainant the sum of €87.29 (1/5 of the normal weekly wage – 2 hours paid) subject to any statutory deductions. I require these monies to be paid within 42 days of the date of this Decision.

Public holiday entitlements