Complainant

Respondent

Anonymised Parties

A Catering Assistant

A Catering Company

Representatives

Scott Jevons Ibec

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00029164-001

19/06/2019

The Complainant commenced employment with the Respondent, a contract Catering Company in September 2008, in the role of Catering Assistant.

The Complainant originally worked a full-time, five-day week contract. According to the Respondent, they facilitated a request from the Complainant, in June 2017, to work a four-day week, with Monday as her nominated day off. The Respondent stated that, in September 2018, they facilitated a further request from the Complainant to reduce her working week to 3 days per week, which again included Monday as a rostered day off. According to the Complainant’s evidence, the arrangement whereby her rostered day off was Monday commenced in 2009.

In May 2019, the Respondent became aware that an error had occurred in their payroll system at the location in which the Complainant was based. This error related to staff, who had changed their working patterns, particularly where that change involved reducing from full-time to part-time, with the attendant result that a public holiday may no longer a working day. As a result of an administration error, the payroll system was not adjusted to ensure that payments to the impacted staff, in relation to public holidays, were consistent with the Statutory Instrument, which was in place governing the determination of pay for holidays. (SI 475/1997 – Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997).

Once discovered, the error was corrected for all impacted staff, including the Complainant. As a result, the calculation of the Complainant’s public holiday entitlement was brought into line with the Statutory Instrument, which applied across all the Respondent’s other sites. This resulted in the Complainant no longer receiving a full day’s pay when a public holiday fell on a Monday, which was a day she was not rostered to work. The Complainant raised the matter directly with her general manager but was dissatisfied when the Respondent failure to revert to the previous calculation.

The Complainant submitted a complaint, under the Terms of Employment (Information) Act, 1994, to the WRC on 19 June 2019. That complaint is the subject of this adjudication.

The Complainant submitted that since the commencement of her employment, in 2008, her terms and conditions had always been the same. According to the Complainant she received double time on a Sunday, triple time if she worked on a Bank Holiday and a full bank holiday entitlement of a full day’s pay.

According to the Complainant’s evidence, she noted, from her payslips of 2 and 16 May 2019 that she had not received her full bank holiday entitlement as heretofore. The Complainant stated that Monday had been her day off for over eight years and that she had always received her full bank holiday entitlement in this regard. The Complainant submitted that she did not receive written notification of this change to her terms and conditions of employment.

The Complainant submitted that, when she raised the matter with the Respondent’s General Manager, she did not receive any satisfaction, as his explanation for the change was that she was a part-time employee. According to the Complainant, she had been on part-time for a number of years, but this had not impacted on the calculation of a bank holiday entitlement, as she got paid a full day’s pay for a bank holiday even though it was her normal day off.

In conclusion, the Complainant submitted that she was now been forced to work bank holidays in order to avoid a loss in earnings, as a result of the new calculation method.

According to the Respondent’s submission, the Complainant’s contract of employment, signed in October 2008, on the commencement of her employment, provides that her entitlement to annual leave and public holidays is calculated in accordance with the provision of the Organisation of Working Time Act, 1997. The Respondent submitted that, when the Complainant’s request to reduce her working hours to 4 days a week, in June 2017, was facilitated, the Act still applied to the calculation of her statutory entitlements.

Consequently, according to the Respondent, there was no change to the Complainant’s terms and conditions of employment which would have warranted the issuing of a written notification. Based on this, the Respondent submitted that there was no contravention of Section 4 of the Terms of Employment (Information) Act.

According to the Respondent’s submission, the Complainant suffered no loss as a result of the administrative error in the payroll system but, in fact, erroneously enjoyed a benefit, which she had no entitlement to, between June 2017 and April 2019, when she and others were correctly realigned to the appropriate payable rate for public holidays. The Respondent further submitted that they did not seek to recover their losses in this regard from the Complainant, even though they would have been lawfully entitled to do so under the Payment of Wages Act, 1991.

With regard to the payroll error, the Respondent submitted that it only applied to the site at which the Complainant worked. It was further submitted that all other staff employed nationally by the Respondent (totalling almost 6000) are paid in line with the relevant Statutory Instrument, which is applied nationally. According to the Respondent, what occurred in the within case was a human error in payroll, which took place when the Complainant requested a change to her working hours and which went unnoticed for a short period of time.

In support of their overall submission in this regard, the Respondent cited the following cases Grant Engineering v Dennis Delaney [TED1728] and Patrick Hall v Irish Water [TE 15/6]. According to the Respondent, the determinations in both of these cases apply to the within case, most particularly, in that the Complainant suffered no loss but received a benefit to which she had no lawful entitlement.

Finally, according to the Respondent’s submission, the Complainant has since sought to work Mondays on which a public holiday falls, so that she can enjoy the higher rate and this request has been facilitated by the Respondent.

In conclusion, based on the submissions and the evidence produced, the Respondent requested a favourable finding.

Having carefully considered all of the evident adduced, I am of the view that, while the Complainant has submitted a complaint under the Terms of Employment (Information) Act, 1994, the basis of which is that she was not notified of a change to her terms and conditions as specified by the ACT, her real grievance appears to be with the fact that she is no longer in receipt of a full day’s pay in respect of public holidays that fall on a Monday, which is her rostered day off each week.

There is disagreement between the parties in relation when exactly the Complainant commenced the working arrangement in which Monday was a rostered day off each week. According to the Respondent, the Complainant first requested a reduction in her working week, with Monday as her nominated day off, in June 2017. According to the Complainant’s evidence, she has not worked Mondays since 2009. In reality, nothing turns on this disagreement, other than, if the Complainant’s evidence is the more accurate, then the arrangement, whereby the Complainant received a full day’s pay in respect of Mondays on which public holidays fell, has applied for a significantly longer period than the Respondent’s evidence suggests.

In any event, notwithstanding all of the above, the Complainant’s complaint is that she was not notified in writing of, what she contends, was a change to her terms of employment, which commenced in May 2019, i.e. the reduction in the relevant rate paid to her in respect of public holidays on days when she was not rostered to work.

I am satisfied that the Complainant’s employment with the Respondent is governed by a Contract of Employment, which was signed at the commencement of her employment in 2008.

This contract clearly sets out that the Complainant’s holiday entitlements are calculated in accordance with the provisions of Part 111 of the Organisation of Working Time Act, 1997. While I note that the contract does not make specific reference to the calculation of public holidays, I am satisfied, in the absence of any reference to an alternative method of calculation, that it is more than reasonable to conclude that the provisions of Part 111 of the Act, which also governs entitlement to public holidays, apply in relation to the calculation of the Complainant’s entitlement to public holidays.

In this regard, I am further satisfied from the evidence adduced, that the Respondent’s calculation of holiday entitlements, including those of public holidays, for its entire workforce, is based on the provisions of the Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997, [S.I. 475/1997].

Consequently, when the Respondent facilitated the Complainant’s request to reduce her working week and, in particular, her request that she would not work Mondays, it follows logically that the manner of the calculation of her public holiday would also have to change.

Section 5 (1)(a) of S.I. 475/1997 sets out, as follows, the relevant rate that applies to employees who are normally required or rostered to work on a day which is a public holiday

( a ) in case the employee's pay is calculated wholly by reference to any of the matters referred to in Regulation 3(2) of these Regulations, the relevant rate in respect of that public holiday shall be the sum that is equal to the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) paid to the employee in respect of the normal Daily hours last worked by him or her before that public holiday,

Section 5 (2)(a) of the Regulation goes on to sets out the rate that applies in circumstances where an employee does not or is not rostered to work on a day which is a public holiday, as follows:

( a ) in the case the employee's pay is calculated wholly be reference to any of the matters referred to in Regulation 3(2) of these Regulations, the relevant rate in respect of that public holiday shall be the sum that is equal to one-fifth of the sum 9including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) paid in respect of the normal weekly hours last worked by the employee before that public holiday,

Based on the above provisions, it is clear that when an employee’s working arrangement changes from a situation where they work on days which are public holidays to an arrangement where they are not required to work on a day that is a public holiday, the relevant rate applicable changes from that set out in Section 5 (1)(a) to that set out in Section 5 (2)(a) of the Instrument.

Clearly, when the Complainant’s request to not work on Mondays was facilitated by the Respondent, the provisions of Section 5(2)(a) of the Instrument should have applied to the calculation of the relevant rate in relation to any public holiday which fell on a Monday. However, due to an error or oversight on behalf of the Respondent this did not happen and the rate applied to the Complainant for public holidays which fell on a Monday, continued to be based on Section 5(1)(a) of the Instrument.

Section 5 of the Terms of Employment (Information) Act, 1994, provides as follows:

5.— (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3 , 4 or 6 , the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.

Subsection 1 above requires that an employer notifies an employee in writing of any change to the particulars of their terms and conditions of employment, as set out in whatever documentation the employer has provided in this regard. However, subsection 2, sets out that subsection 1 does not apply where the change occurs as a result of the application of statute or other legal provision/collective agreement.

Having carefully considered all of the evidence, I am satisfied that the changes which occurred, as a result of the Complainant’s request to alter her working patterns, merely resulted in a different section of the Regulation applying to the calculation, as opposed to a more significant change to her terms and conditions.

Consequently, in that context, I am satisfied that the provisions of Section 5(2) (a) of the Regulation applies. Therefore, I find the Respondent’s contention that the change to the Complainant’s terms and conditions of employment did not warrant the issuing of written notification is well-founded.

In addition, I find that, while no correspondence issued to the Complainant in relation to this situation, the evidence suggests that management did engage with her in order to explain the situation once the administrative error in the payroll system had been discovered.

Having carefully reviewed all of the evidence adduced, I find the Respondent to have dealt with the Complainant’s various requests for part-time work in a reasonable and facilitative manner, wherein they sought, at all times, to facilitate her requests. However, such facilitation cannot be expected to extend to the application of a method of calculation of holiday entitlement which contravenes the legislation and the work practices which apply nationally to the Respondent’s workforce.

As a further indication of the Respondent’s bona fides in relation to this matter, I note the Respondent has agreed to roster the Complainant for work on any Monday that is also a bank/public holiday. This can only be viewed as reasonable attempt on the part of the Respondent to assist the Complainant in mitigating any loss of earnings which results from the facilitation of her request that she be, normally, rostered off work on Mondays.

Taking all of the above into consideration, I find that the Complainant’s claim is not well-founded.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above and in line with Section 7 (2) (a) of the Terms of Employment (Information) Act, 1994, I find the Complainant’s complaint is not well-founded.

In addition, in line with Section 7 (2) (c) of the Act, I require that the Respondent now provide the Complainant with a revised Statement of Terms of Employment, which clearly sets out the method of calculation of the relevant rate for public holidays.

Terms of Employment (Information) Act, 1994.