ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00015102

Parties:

	Complainant	Respondent
Anonymised Parties	A Bus Driver	A Bus Company

Representatives

Marie O'Connor SIPTU

Not present

Complaint(s):

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-00019639-001	07/06/2018

Date of Adjudication Hearing: 07/11/2018

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The Complainant is employed as a Bus Driver and was not paid his public holiday pay for two days. The Complainant is seeking payment for the two days and compensation for the breach.

Summary of Complainant’s Case:

The Complainant commenced employment with the Respondent in 2005 as a Bus Driver.

The Complainant has not received his public holiday entitlement in relation to the public holidays on the 26th December, 2017 and 1st January, 2018.

Section 21 of the Organisation of Working Time Act, 1977 provides that:

“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 subjection shall have effect as if paragraph (a) were omitted therefrom.

SI 475 of 1997 – Organisation of Working Time (Determination of Pay for Holidays) Regulation 1997 sets out the position in relation to payment for public holidays.

There is also a WRC Court Recommendationin place. The Recommendation states as follows:-

“Payment for Public Holidays

All drivers will receive a minimum of 1 basic days’ pay at the composite rate for a Public Holiday.”

The employer has breached Section 21 of the Organisation of Working Time Act, 1997, SI 475 of 1997 – Organisation of Working Time (Determination of Pay for Holidays) Regulation 1997 and WRC Court Recommendation (No deleted) in respect of Payment for Public Holidays.

The Complainant should have been paid the sum of €150.42 per day giving a total of €300.84 in respect of these two days.

As the Organisation of Working Time Act derives from a European Directive we contend that the failure of the employer to meet it’s obligations under the Act renders them liable to compensate the Complainant for the breaches.

The requirement for the Adjudication Service to apply compensation is set out in the Decision of the ECJ in Von Colson and Kamann [1984] ECR 1891 where the ECJ held:

“It nevertheless requires that if a member state chooses to penalize breaches of that prohibition by the award of compensation, then in order to ensure that it is effective and has a deterrent effect, that compensation must in any event be adequate in relation to the damage sustained and must, therefore, amount to more than purely nominal compensation.

The Complainant cited a Labour Court Decision in support of this contention.

Based on the above facts of the case we request that the Adjudicator:-

declare that the case is well founded,

declare that our member be paid his public holiday entitlement in respect of the two days as set out above.

award our member compensation of such amount as is just and equitable having regard to all of the circumstances not to exceed two years remuneration.

Summary of Respondent’s Case:

The Respondent was not present at the Hearing.

Decision:

Section 41 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.

Based on the uncontested evidence of the Complainant I award him two days pay for the non payment of public holiday pay on December 26th 2017 and January 1st 2018 which was due under Section 21 of the Act. The complainants representative also sought under the Van Colson judgement the payment of compensation. The Adjudicator is required to follow the decisions of the ECJ in Van Colson and Kamann (1984) ECR 1891 when considering awards of compensation. Van Colson held that “sanctions for breaches of Community Rights must be effective, proportionate and dissuasive-they must act as a disincentive against future infractions by the employer”.

In all the circumstances of this case, based on the sole evidence of the Complainant, and based on the decision in Van Colson V Kamann (1984) ECR 1891, I award the Complainant an additional 500 Euros compensation.

Dated: 4th December 2018

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Non Payment of Public Holidays.