Complainant

Respondent

Anonymised Parties

A Bus Driver

A Transport Provider

Representatives

SIPTU

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-00022248-001

28/09/2018

The Complainant commenced his employment with the Respondent in 2000 as a bus driver.

The Complainant alleges that he has not received his public holiday entitlement in respect of the public holiday that fell on Monday 2nd April 2018.

The Respondent refutes the claim.

SIPTU on behalf of the Complainant submits that he should have been paid the sum of €157 as a daily payment in respect of the public holiday which fell on 2nd April 2018.

The Complainant submits that he requested a day off on Monday 2nd April 2018 some two weeks in advance. However, on Saturday (31st March 2018) when the roster was put up he was informed by a work colleague that he was put on the roster to work on Monday. The Complainant submits that, as a matter of courtesy he rang the Respondent and explained that he had requested a day off. The Complainant submits that his supervisor told him that there is nothing he can do. The Complainant submits that on Monday 2nd April 2018 he received a text message at 9.15am asking “You not coming in today is that correct”. The Complainant submits that he replied at 9.25am: “No roster up when I left on Fri Eve…had applied to be off two weeks ago…had plans made no information forthcoming so went ahead with my plan…return tonight bk in tomorrow.”

SIPTU claims that the Respondent has breached Section 21 of the Organisation of Working Time Act, 1997, S.I. 475 of 1997- Organisation of Working Time (Determination of Pay for Holidays) Regulation 1997 and the Labour Court recommendation relevant to the Respondent (the recommendation was provided but is not listed here to retain the anonymity of the Complainant).

SIPTU argues that, as the Organisation of Working Time Act derives from a European Directive the failure of the employer to meet its obligations under the Act renders them liable to compensate the Complainant for the breaches. In that regard, SIPTU relies on 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.”

In respect of the claim for compensation SIPTU cited Labour Court decision DWT13146 and DWT179 in support.

In response to the Respondent’s assertion that the Complainant was, in fact, paid his public holiday’s entitlement on 18th October 2018 the Complainant stated that he cannot confirm that the payment was in respect of his public holiday’s entitlement. Furthermore, SIPTU submitted that the WRC Complaint Form was submitted on 28th September 2018 and the payment was made on 18th October as a result. SIPTU argued that even if the payment was made to the Complainant on 18th October 2018, the breach has occurred and the Complainant seeks compensation in that regard.

Post-hearing, on 31st January 2019, SIPTU submitted a copy of email correspondence between the Complainant and the Respondent in relation to a payment received in the week 42 of 2018. SIPTU argued that the Respondent paid the annual leave arrears and not the public holiday payment, as it claimed.

The Respondent submits that the standard procedure is that drivers can request days off in advance and the Respondent tries to accommodate their requests as much as possible. However, it is not always possible to give a day off to all who had made a request. The Respondent submits that it is standard practice that the roster is completed and displayed at 10-11am on Saturday for the next week and it is up to the individual drivers to check their working days.

The Responded submits that on the day in question eight drivers who were rostered to work, including the Complainant did not turn up to work. The Respondent submits that in the circumstances a decision was made not to pay those who did not turn up pending an investigation process. The Respondent submits that a disciplinary process was instigated, and eight employees involved, including the Complainant were interviewed by the Chief Inspector. The payment in respect of the public holiday was put on hold pending the outcome. The Respondent submits that the Complainant explanation was accepted, and no further action was required. The Respondent submits that the Complainant was subsequently paid his public holiday’s entitlement on 18th October 2018. The Respondent exhibited copies of relevant payslip and roster / timesheet and clarified the details as shown on the documents.

The Respondent submits that the matter was discussed with local SIPTU representative and it was confirmed that the Complainant received his entitlement.

In response to SIPTU email of 31st January 2019, the Respondent provided a breakdown of the payslip for week 42 of 2018. The Respondent clarified that, in week 42 the Compalinant’s roster (exhibited at the hearing) showed the following:

Sunday, 7th October – certified ill Monday, 8th October – resting Tuesday, 9th October – certified ill Wednesday, 10th October – certified ill Thursday, 11th October – working Friday, 12th October – working Saturday, 13th October – resting

In summary three days off sick and two days working.

The Complainant’s payslip showed: Overtime: €8.04 Basic pay 3 days (including 1 days’ pay for the public holiday in question) Annual leave bonus (back pay as referred to in the email submitted by SIPTU) Sick pay 3 days.

The Respondent confirmed that the public holiday benefit was paid in week 42 of 2018.

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

“Entitlement in respect of public holidays

(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.”

The details of public holidays entitlements are also outlined in the WRC Agreement in respect of the implementation of the Labour Court Recommendation relevant to this Respondent which details the entitlements in respect of public holidays.

I find that the Complainant was entitled to public holiday benefit in respect of the public holiday which fell on 2nd April 2018. Based on the evidence offered by the Respondent I find that the payment in that regard was made to the Complainant on 18th October 2018.

The claim before me is that the Complainant has not received his public holiday’s entitlement in respect of 2nd April 2018 and I find that it is not well-founded.

In respect of the Complainant’s assertion that he was entitled to a paid day off on the day the public holiday fell and, as the payment was delayed he is entitled to a compensation in line with Von Colson and Kamann I find as follows.

As per the Organisation of Working Time Act, the Complainant is 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”

The Complainant was rostered to work on the day the public holiday fell but decided to take a day off without an agreement with the Respondent. The Respondent did roster the Complainant to work on the public holiday. Therefore, the Respondent determined that the Complainant was not given (a) a paid day off on that day. Subsequently, an additional day’s pay (d) was paid to the Complainant. In so far as there was a delay, I note that the Act does not specify the time frame regarding the additional day’s pay. However, the Act does not provide for a suspension of a public holiday’s benefit pending the outcome of a disciplinary investigation. Although, it was not reasonable of the Respondent to delay the payment for some 6 months it was equally unreasonable of the Complainant to have acted as he did, and he contributed to the delay. In any event, the payment was made and therefore, no contravention of the Act occurred, and the question of compensation does not arise.

Having considered the submissions of both parties and the evidence adduced at the hearing of this complaint, I declare this complaint not well-founded.

Public holiday entitlement