ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00022873

Parties:

Complaint(s):

Date of Adjudication Hearing: 17/10/2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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:

The Complaint refers to the payment of public holiday entitlements.

Summary of Complainant’s Case:

The Complainant is employed as a Security General Operative. He maintained that he has not been in receipt of his public holiday entitlements for many years. The Complainant submitted that he is rostered for 12 hour shifts daily from 7am to 7pm, or from 7pm to 7am, three days a week plus a further 6 hour shift each week, amounting to a 42-hour week. The Complainant maintained that he does not receive a public holiday entitlement for when he works from midnight to 7am on a public holiday, and that his employer maintained that he was not entitled to the public holiday allowance until 7am on a Public Holiday. The Complainant also submitted that he was deducted €215.70 in May 2019 where the employer maintained that it incorrectly overpaid him for working from midnight to 7am for working during a public holiday pay.

This complaint was progressed locally through a Grievance procedure and had not been resolved at the time the Complainant issued his complaint to the WRC for adjudication.

Summary of Respondent’s Case:

The Respondent acknowledged that it was in discussions with the Complainant’s Trade Union when he lodged his complaint to the WRC. The Respondent acknowledged that an agreement has been made that in future the Complainant will be paid a public holiday entitlement when he works from midnight to 7am on a public holiday. The Respondent acknowledged that it had sought to recover an overpayment from the Complainant for paying him a public holiday entitlement in May 2019, and that it proposed this was to be repaid at the rate of €50 per week.

The Respondent acknowledged that the public holiday entitlement as negotiated with the Union was the standard rate per hour plus a further two hours pay for each hour worked on a public holiday, less an unsociable hour rate of 1/6th of the flat rate which is paid for unsociable hours work when a public holiday payment does not apply.

Findings and Conclusions:

In accordance with Section 21.(1) of the Organisation of Working Time Act 19972 (the Act) …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… be entitled to a paid day off.

As the Complainant was rostered for some 10 public holidays since August 2013, and where he was not paid a public holiday entitlement when he worked from midnight to 7am on those public holidays on these rostered days up to June 2019, I find that the Respondent is in breach of its obligations under the Act.

Under the Workplace Relations Act 2015, the Complainant is entitled to make a claim up to six months from the time of the breach. I am satisfied that the Complainant was aware that he was not in receipt of a public holiday entitlement for some time and had been in dispute with his employer about this matter which came to the fore when the Respondent sought to recover what it maintained was an incorrect overpayment of a public holiday allowance that was paid to the Complainant in May 2019.

The matter has since been subject to a recent agreement between the Complainant’s Trade Union and the Respondent and where the Respondent has agreed going forward to pay the public holiday entitlement to the Complainant when he is rostered from midnight to 7am on a public holiday.

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.

Having heard the parties I am satisfied that the Complainant was not in receipt of a public holiday entitlement and where the records presented by the Respondent indicated the Complainant was not paid for 10 public holidays since August 2013. In accordance with the powers conferred to me under section 27(1)(3) of the Organisation of Working Time Act 1997 as amended, I declare the that the complaint the Respondent is in breach if its obligations under S 21 of the organisation of Working Time Act 1997 is well founded.

Under section 27(3) of the Organisation of Working Time Act 1997 I require the employer to comply with the relevant provision and ensure the Complainant is paid the agreed public holiday entitlement. I also require the Respondent to pay to the Complainant compensation of €1,700 as being just and equitable having regard to all of the circumstances of the case and where the Complainant was not properly compensated for a public holiday entitlement of for a significant number of years, albeit he was only rostered for a number of public holidays a year over that timeframe.

Dated: 23rd October 2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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