Complainant

Respondent

Anonymised Parties

A Bus Driver

A Public 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-00019820-001

18/06/2018

The Complainant referred his complaint to the WRC on 18th June 2018 alleging that he has not received his public holidays entitlements in respect of public holidays that fell on 26th December 2017 and 2nd April 2018.

SIPTU, on behalf of the Complainant submits that the Complainant has not received payment for two public holidays which fell on 26th December 2017 and 2nd April 2018.

SIPTU argues that, irrespective of the reasons why the Complainant was not in attendance at work on either of the dates in question, he is entitled to the benefit of the application of public holiday entitlements as per Section 21 of the Organisation of Working Time Act.

The Complainant submits that his entitlement equals 7.45 hours per each public holiday at the rate of €20.44 per hour.

The Respondent has not discharged any of the options available to it under the Act to meet the legislative requirements set out by the Act.

Given that the Organisation of Working Time Act derives from a European Directive, SIPTU contends that the failure by the Respondent to meet its obligations renders it liable to compensate the Complainant for the breach of his rights. The requirement for the third-party mechanisms of the state to apply compensation for breaches of European directives is set out in the decision of the ECJ in Von Colson & Kamann ECR1891.

In the circumstances of this case, SIPTU requests that the Complainant is paid two days pay arising from the public holiday entitlements and compensation for the breaches of his rights.

The Respondent submits that its understanding is that a payment in respect of public holidays entitlements was made to the Complainant in week 42 of 2018.   However, the Respondent is unable to present any evidence to confirm so. The Respondent submits that that it has nothing at this point in time to defend the claim.

The Respondent confirmed that the Complainant’s entitlement would be 7.45 hours per each public holiday at the rate of €20.44 per hour.

Section 21 of the Act stipulates 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.

There was no dispute between the parties that the Complainant was entitled to a benefit of 7.45 hours per public holiday at the rate of €20.44 per hour.

The Complainant referred his claim to the WRC on 18th June 2018 alleging that he did not receive his entitlement in respect of two public holidays which fell on 26th December 2017 and 2nd April 2018. The Respondent was notified of the claim by letter dated 6th July 2018. Subsequently, by letter dated 12th July 2019, the Respondent was notified of an adjudication hearing in respect of the claim scheduled on 8th August 2019.

The Respondent, despite being on notice of the claim for over a year, attended the hearing and stated that it has “nothing at this point of time to defend the claim”.

Having considered the evidence before me and in absence of any adequate records, I find that, on the balance of probabilities, the Respondent has contravened Section 21 of the Act.

I declare this complaint well-founded. I order the Respondent to pay the Complainant €304.56 in respect of the public holidays’ entitlements. In addition, I direct the Respondent to pay the Complainant €250 in compensation for the breach of his rights under the Act.

Public holidays entitlements- complaint well founded