Complainant

Respondent

Anonymised Parties

A Radiation Technician

A Hospital

Act

Complaint 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-00012562-001

17/07/2017

The complainant works Mondays and Tuesdays and the complaint relates to her public holiday entitlements when a public holiday falls on a day she would normally work.

In the complaint form, the complainant outlines that she is only ever paid 1/5th for a public holiday, even where the public holiday falls on a Monday. She works Mondays and Tuesday. She is, therefore, only allocated 3 hours for each public holiday that falls on a Monday. She must make up the remaining 4.5 hours in overtime or annual leave. This means that she is losing annual leave to cover the hours arising on a Monday public holiday. The respondent informed the complainant that she owed hours for 2016/2017. She was due to go on maternity leave in September 2017.

The complainant outlined that this claim related to her entitlement for public holidays. She commenced working for the respondent in 2008. She was initially full-time and started working part-time in 2011. She now works on Mondays and Tuesdays and works 15 hours per week. The department in which she works is open Monday to Friday from 9am to 5pm. The department closes on public holidays and she is entitled to a day off for public holidays that fall on a Monday.

In January 2017, the respondent made the complainant aware that she owed 50 hours. This was the public holidays that arose during the complainant’s maternity leave. She negotiated a reduction in the hours to 30 hours and had to work these hours. She did this by taking shorter daily rest breaks and by taking annual leave.

The complainant outlined that if you worked 40 hours in the preceding 5 weeks, you are entitled to the public holiday. The days are set in stone at 7.5 hours and the complainant could not work on a day other than Mondays as this was the busiest day for the department. This complaint was dated the 17th July 2017 and she sought redress for the current and previous year to be addressed, as well as going forward.

In reply to the respondent, the complainant said that she used to work Monday to Wednesday. She had been penalised because this issue led to her having to work up hours accrued over public holidays. She had only been aware of this when the hours built up to 50 hours. She has worked on Mondays since 2012.

At the outset of the adjudication, the representatives of the respondent confirmed the legal title of the respondent limited company.

The respondent submitted that as a part-time worker, the complainant was entitled to 1/5th of her working time. The complainant’s contract of employment allowed her to be rostered to work on any working day. She had only worked Monday and Tuesdays since February. The complainant’s working week was 15 hours and she was therefore entitled to 1/5th public holidays. It was open for the complainant to work on other days, for example Tuesday and Wednesday. It submitted that the complainant’s hours could be restored at any time.

The respondent referred to legal advice, which it shared at the adjudication. This refers to section 21 of the Organisation of Working Time Act and the Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997. It refers to the Labour Court authority of Revenue Commissioners v Doyle (DWT0625). It relies on section 5(1)(b) of the Regulations to conclude that the complainant is entitled to 1/5th of her normal weekly pay where the public holiday falls on a Monday or Tuesday. It refers to section 5(2) of the Regulations where the public holiday falls on a day that the complainant does not work (i.e. Wednesday to Friday). It concludes that the complainant is also entitled to 1/5th of her normal weekly pay for such a day.

The complainant works two days per week for the respondent. She reduced her working week in 2011 and now works on Mondays and Tuesdays. Her normal working week is 15 hours. The issue is what her public holiday entitlement is when the public holiday either falls on a Monday or Tuesday or on another day. The respondent denies the claim and asserts that she is entitled to 1/5th pay of her normal weekly pay, whichever day the public holiday falls. When a public holiday falls on a Monday or Tuesday, the respondent maintains that the complainant is entitled to 1/5th of her normal weekly hour, i.e. 3 hours. She must take annual leave or work up the remaining 4.5 hours of each public holiday.

Matters came to a head when the respondent sought recovery of overpaid hours accrued by the complainant over an extended period of time. She had to work 30 additional hours to make this up or availed of annual leave.

Section 21 of the Organisation of Working Time Act provides an employee’s entitlement to a day off on a public holiday and makes provision for when the employee is required to work on this day. Section 22 makes provision for Regulations to determine the pay entitlements of employees on public holidays. The Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997 (S.I. 475/1997) apply.

There are nine public holidays in Ireland. In the 12 months prior to making the complaint, 8 of the 9 public holidays fell on a Monday or Tuesday. St Patrick’s Day was the only public holiday to fall on another day.

Applying the above statutory provisions and the Labour Court authority of Revenue Commissioners v Doyle, the complainant is entitled to 1/5ths of her normal weekly pay where the public holiday falls on a day other than Monday or Tuesday.

In respect of a public holiday that falls on a Monday or Tuesday, I find that the complainant is entitled to a full day’s pay for this day. I reach this finding for the following reasons. Regulation 3(2) of the Regulations provides:

“(2) If the employee concerned's pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be 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) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.”

From the evidence, the complainant’s employment falls within the ambit of this provision. She has a normal weekly rate of pay based on two days’ work.

Regulation 5 of the 1997 Regulations provides:

“(1) 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) in any other case, the relevant rate in respect of that public holiday shall be the sum that is equal to the average Daily 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.”

I have found that the complainant’s employment falls within the ambit of Regulation 3(2). It follows that her entitlement to pay on a public holiday what falls on a day she would normally work is calculated according to Regulation 5(1)(a). This means that she is entitled to pay equivalent to her normal daily hours for that day. She is entitled to full pay for a public holiday that falls on a day she normally works, in this case Monday or Tuesday.

I note that this finding is consistent with the Labour Court authority in Revenue Commissioners v Doyle, where the Court determined that the employee was entitled to a paid full day off when a public holiday fell on a day in which he worked the full day.

Section 27 of the Organisation of Working Time Act, as amended, provides:

“27.— (1) In this section “relevant provision” means—

(a)  any of the following sections, namely, section 6(2), sections 11 to 23, or section 26,

…

(3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”

I appreciate that the respondent sought to clarify the legal position regarding public holiday entitlements and engaged with the complainant. Given the findings above, the complaint is well founded. Pursuant to section 27(3)(b) of the Organisation of Working Time Act, the respondent is required to comply with sections 21 and 22 of the Act. This is a forward-looking requirement. Pursuant to section 27(3)(c) of the Organisation of Working Time Act, the respondent shall pay to the complainant redress of €1,200.

CA-00012562-001

I find that the complaint made pursuant to the Organisation of Working Time Act is well founded.

Pursuant to section 27(3)(b) of the Organisation of Working Time Act, the respondent is required to comply with sections 21 and 22 of the Act. Pursuant to section 27(3)(c) of the Organisation of Working Time Act, the respondent shall pay to the complainant redress of €1,200.

Sections 21 and 22 of the Organisation of Working Time Act

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

Revenue Commissioners v Doyle (DWT0625)