ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00021003

Parties:

Complaint:

Date of Adjudication Hearing: 22/07/2019

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

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

Background:

Summary of Complainant’s Case:

He stated that he worked from 6.00pm to 6.00am. He was paid double time till midnight only. He has claimed for double time for all of his 12-hour shift.

2) Dec 25th & 26th 2018

He did not work these Public Holidays. He was not paid for them at the time. He has received payments since, but he doesn’t know what they are for.

3) January 1st 2019

He did not work the Public Holiday. He was not compensated for the Public Holiday. He received 48 hours pay at a later stage, but he doesn’t know what it is for.

4) March 17th 2019

He didn’t work that Public Holiday. He was not compensated for the Public Holiday. He received 48 hours pay at a later stage, but he doesn’t know what it is for.

1. B) Annual Leave

He stated that his normal shift is 12 hours. When he was paid holiday pay he only received holiday pay based on an 8-hour day.

1. C) Breaks

He stated that there has been a change in how the breaks were paid. He used to be paid for 40 minutes but he is not paid now.

Summary of Respondent’s Case:

1. C) Breaks / Terms and Conditions of Employment

They stated that this complaint concerns a change in terms and conditions of employment regarding the payment of breaks. This Act does not provide for payment for breaks and so this part of the complaint should be rejected.

Findings and Conclusions:

I note that the Respondent has accepted that the Complainant was not properly compensated for the Public Holidays, when not rostered. They rectified that and paid 48 hours pay in compensation. They also accepted that October 29th 2018 was omitted in error and that €91.80 is due.

I find that the Respondent was correct to pay double time for the actual hours that fell on the Public Holidays and the premium payment does not apply to the hours that do not coincide with the Public Holidays.

I note that the Respondent’s position is that while the Complainant works a 12-hour shift and 48 hours per week, the basic hours are 39 and the remaining hours are deemed overtime at flat rate. As per S.I. 475/1997 overtime is excluded in the calculation of holiday pay and so he was compensated at the basic hours, not the total hours worked.

I note that they relied upon Sec 3(1) of S.I. 475/1997 which states,” but excluding any pay for overtime”.

I find that it is a general principle that a person neither gains or loses when being compensated for holidays or Public Holidays.

I do not accept the Respondent’s position that of the 48 hours worked 39 are basic and the rest is overtime.

I find that the Complainant worked a standard 12-hour shift and so must be compensated as that.

Therefore, I find that the Complainant was not properly compensated for the Public Holidays.

1. B) Annual Leave

I note the Respondent’s objection to annual leave being raised at the hearing.

I find that it is common case that employees do not differentiate between annual leave and Public Holidays.

I also note that not withstanding their objection to the claim the Respondent addressed it.

In the interest of fairness, I have decided to allow this part of the claim to be considered.

For the reasons set out above under Public Holidays I find that the Complainant worked a 12-hour shift and so should have been compensated based on 12-hour shift, not 8 hours. As stated an employee should neither gain or lose while on holidays.

1. C) Rest breaks/ Change in terms and conditions of employment

I note that this claim concerns a change in how the rest breaks are paid.

I find that the Organisation of Working Time Act does not deal with the payment for rest periods.

Decision:

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

1. A) Public Holidays

I require the Respondent to pay the Complainant €91.80 as already identified.

I also require the Respondent to pay the Complainant compensation based upon a 12-hour shift and not 8 hours.

This is to be done within six weeks of the date below.

1. B) Annual Leave

I require the Respondent to compensate the Complainant for annual leave based upon 12-hour shift, not at the reduced hours of 8.

This is to be done within six weeks of the date below.

I have decided that this complaint is misconceived.

Dated: 9th August 2019

Workplace Relations Commission Adjudication Officer: Eugene Hanly

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