Complainant

Respondent

Anonymised Parties

A Pharmacist

A Pharmacy

Representatives

Act

Complaint/Dispute 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-00027648-001

04/04/2019

I worked on the 17th March, 2019, St. Patrick’s day. This year it fell on the Sunday. I also worked on the Easter Sunday. I was paid 2.49 hours for the bank holiday Monday of both holidays. I never work on a Monday. Last night I was paid the balance up to 10 hours, 7.51. On Easter Sunday I was paid 2.84. I am due the balance up to 10 hours.

Our pay role week is Monday to Sunday. If a public holiday falls on a Saturday or Sunday, the employee is paid on the Monday. We transfer the public holiday to the Monday. We always have. However, the complainant does actually work on the Sundays.

We got advice that she was only entitled to 1/5 of her last normal working week. I queried it again because the complainant did actually work the Sunday of both days and both days were public holidays.

The confusion in this case has been caused by the respondent’s custom and practise of moving of a public holiday Sunday to a bank holiday Monday for the purpose of calculating pay. The respondent should not move statutory defined public holidays to bank holidays. One has statutory implications and the other does not. The complainant does not work on Mondays.

21.—(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.

(2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday.

(3) If an employer fails to comply with a request under subsection (2), he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day's pay,

(4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.

(5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule.  

(6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work.

Each of the following days shall, subject to the subsequent provisions of this Schedule, be a public holiday for the purposes of this Act:

Public Holidays are defined in the Second Schedule as:

(a) Christmas Day,

(b) St. Stephen's Day,

(c) St. Patrick's Day,

(d) Easter Monday, the first Monday in May, the first Monday in June and the first Monday in August

(e) the last Monday in October

(f) the 1st day of January,

(g) any other day or days prescribed for the purposes of this paragraph.

Easter Sunday is not a public holiday. Easter Monday is the public holiday. The complainant does not work on Mondays. Therefore, she is not entitled to any additional payments for this period.

St. Patrick’s day is a public Holiday. I note the complainant has received a payment from the respondent amounting to 10 hours for working on that day. Therefore, no further payment is due to the complainant.

On that basis I find that the complaint fails.

For the reasons set out above, the complaint fails.