Complainant

Respondent

Anonymised Parties

Employee

Security Company

Representatives

  self

John Barry Management Support Services (Ireland) Ltd-Mr John Hegarty attending

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-00035218-001

12/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00035218-002

12/03/2020

In the complaint form, the complainant states the following:

“I normally work 48 hours per week but only receive holiday pay at 40 hours per week. I have raised this query with my employer but have been told that everybody gets paid those hours”

“no pay received in relation to bank holiday on January 1st, 2020, as I did not work that day and no pay for March 17th either. I usually get rostered to work most bank holidays and I get paid correctly. However, I am aware that I am entitled to same pay for a bank holiday even I do not work that day.”

The respondent states that they attempted to reach agreement regarding payment for the 2 public holidays; however, for whatever reason, the complainant declined the employer offer to accede to his claim relating to the 2 specified public holidays.

In regard to the claim to include rostered overtime in annual leave entitlement; the respondent contends that the complainant is not entitled to be paid overtime in annual leave under the Organisation of Working Time Act 1997 as amended and in any case the complainant received an excess of holiday payment.

A remote hearing was held on the 11th of December 2020 and adjourned to facilitate exchanges between the parties and submission of payslips detailing alleged breaches of the Organisation Working Time Act.

On the 23rd of December 2020 the complainant made a detailed written submission attaching payslips.

On the 7th of January 2021 the complainant states that to date they had not received the respondent’s written submission.

On the 17th of January 2021 the complainant makes a detailed reply to the respondent’s submission.

On the 26th of March 2021 the hearing reconvenes for a remote hearing.

On the 21st of April 2021 the Adjudication Officer writes to the respondent reminding the respondent that at the last day of hearing, the complainant was given 2 weeks to detail their loss for the relevant period and provide evidence. At the last day of hearing the respondent stated that they required 1 week to reply. As several weeks had passed without the employer replying, the Adjudicator requested that the time to reply would be extended to 30th April 2021. No reply was received.

On the 25th of June 2021 the Adjudicator wrote to the respondent summarising both parties’ positions and also referring to CJEU jurisprudence and specifically that ‘that remuneration paid in respect of annual leave must, in principle, be determined in such a way as to correspond to the normal remuneration received by the worker’.

As requested, the respondent employer submitted a supplementary submission addressing the matters raised in correspondence from the Adjudicator of the 25th of June 2021

The complainant states in his submission:

“I normally work 48 hours per week but only receive holiday pay at 40 hours”

I have raised this query with my employer but have been told everybody gets paid these hours for holidays.

It should not cost me to take a week’s holiday and this way I am receiving less pay.

I usually get rostered to work most bank holidays and get paid correctly. “

The complainant relies both on his contractual requirement to work 48 hours per week as the basis to calculate the normal weekly rate and also references the Employment Regulation Order 2017 which states annual leave should be paid in terms of the Organisation of Working Time Act.

Annual Leave

Annual leave entitlement shall be in accordance with the terms of the Organisation of Working Time Act 1997. Regular rostered overtime is to be included for the purposes of holiday pay. Regular rostered overtime will be averaged over the previous 13 weeks worked, prior to the taking of annual leave.

Public Holidays

Public Holiday entitlement shall be in accordance with the terms of the Organisation of Working Time Act 1997.

The respondent employer maintains that no liability arises to overtime as prescribed under S.I. No. 457/1997 Organisation of Working Time (determination for Holidays) Regulations, 1997. In fact it is specifically precluded under the regulation.

The interpretation of the CJEU is not at odds with the S.I No. 457 as firstly the directive is about protecting the rights of an employee to a period of rest and relaxation. In that regard the claimant’s rights were protected.

The CJEU has held that any circumstances that give rise to uncertainty during annual leave that would deter a worker from taking annual leave is incompatible with the directive. That has not occurred in this case as the claimant has at all times taken annual leave and fully availed of his entitlement.

No CJEU case has specifically dealt with overtime, while other payments such as commission have been included and the inclusion of commission in normal weekly rate does not create a general principle that provides for rostered overtime to likewise be included.

The facts of the case are simple. The claimant contends that he is entitled to regular rostered overtime in the calculation of pay for Annual leave. According to the Employment Regulation Order the employer accepts that rostered overtime should be included and was not included.

However, this claim is made under the Organisation Working Time Act as such the rules of the Organisation Working Time Act must apply and those rules exclude overtime and that exclusion is not in breach of any principle enunciated by the CJEU, the Directive or any Court

The Employer maintains that the employee has made their complaint under the Organisation Working Time Act 1997 as amended and regulations made pursuant to the Act preclude overtime including rostered overtime.

The respondent also relies on section 41(16) of the Workplace Relations Act 2015 that provides for correction of administrative or clerical errors but does not provide for the complainant to amend their submission to rely on the Payment of Wages Act 1991 as amended and any unlawful deductions made by his employer concerning contractual conditions that include rostered overtime. The complainant is bound by his submission and by analogy can’t change horses at the commencement of or during the hearing.

The first matter to be addressed is what constitutes the normal weekly rate for the purposes of the Directive and does that include rostered overtime.

The Act at Article 7 states:

Article 7

Annual leave

1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.

Section 19 of the Act states that holiday entitlement is:

19.— (1) Subject to the first schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

Section 20 of the Act states:

20.— (1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(3) Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of, and the pay in respect of, his or her annual leave.

(4) In this section “normal weekly rate” means the normal weekly rate of the employee concerned’s pay determined in accordance with regulations made by the Minister for the purposes of this section.

The regulation relevant for determining the normal weekly rate of the employee is S.I 475 of 1997:

3. (1) The normal weekly rate of an employee's pay, for the purposes of sections 20 and 23 of the Act (hereafter in this Regulation referred to as the "relevant sections"), shall be determined in accordance with the following provisions of this Regulation.

(2) If the employee concerned's pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be 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) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.

(3) If the employee concerned's pay is not calculated wholly by reference to any of the matters referred to in paragraph (2) of this Regulation, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum that is equal to the average weekly pay (excluding any pay for overtime) of the employee calculated over—

(a) the period of 13 weeks ending immediately before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs,

or

(b) if no time was worked by the employee during that period, over the period of 13 weeks ending on the day on which time was last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.

Public Holiday calculations are defined by section 5 of the Regulations:

( 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,

(b) in any other case, the relevant rate in respect of that public holiday shall be the sum that is equal to the average Daily pay (excluding any pay for overtime) of the employee calculated over—

(i) the period of 13 weeks ending immediately before that public holiday,

or

(ii) if no time was worked by the employee during that period, the period of 13 weeks ending on the day on which time was last worked by the employee before that public holiday.

Section 21 of the Act relates to Public Holiday entitlement:

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:

The Act relates to statutory annual leave which is 4 weeks (see section 19) and 9 Public Holidays as detailed at schedule 2 in the Act. 

What is the definition of normal weekly rate in this case? The Regulation at section  2 states If the employee concerned’s pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay…shall be 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) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave ( or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.

Section 2 applies to the complainant as he is paid a time rate that doesn’t vary in relation to the work done by him. However, the section specifically excludes overtime, the question I must ask does this reference to overtime relate to rostered overtime and so exclude the right to payment of rostered overtime as part of the normal weekly rate.

In Lock v British Gas Trading Ltd [2014] ICR 813 the CJEU stated:

24. The general rule laid down by the court with regard to remuneration comprising several components is that, although the structure of the ordinary remuneration of a worker is determined, as such, by the provisions and practices governed by the law of the member states, that structure cannot affect the worker’s right to enjoy, during his period of rest and relaxation, economic conditions which are comparable to those relating to his employment.

25. Applying that general rule, the court held that any inconvenient aspect linked intrinsically to the performance of the tasks the worker is required to carry out under his contract of employment and in respect of which a monetary amount is provided which is included in  the calculation of the workers remuneration, such as, in the case of airline pilots, the time spent flying, must necessarily be taken into account for the purposes of the amount to which the worker is entitled during his annual leave.

26. By contrast, according to the court (in British Airways plc v Williams (Case C-155/10) [2012], the components of worker’s total remuneration which are intended exclusively to cover occasional or ancillary costs arising at the time that pilots have to spend away from base, need not be taken into account in the calculation of the payment to be made during annual leave; Williams para 25.

27. The existence of an intrinsic link between the various components making up the total remuneration of the worker and the performance of the tasks he is required to carry out under his contract of employment, would seem, therefore, to be a decisive criterion for including those various components in the remuneration payable to the worker during his paid annual leave. The various allowances a worker may claim during paid annual leave must therefore not only be directly linked to the performance of the tasks he is required to carry out under his contract of employment, but also have a certain degree of permanence.

The Court determined in Hein v Albert Holzkamm Gmbh (C-385/17), [2018] 12 WLUK 184, that a worker should receive normal pay as holiday pay. The Court observed that it “has already stated that the term ‘paid annual leave’ in Article 7(1) of Directive 2003/88 means that for the duration of the annual leave, remuneration must be maintained and that workers must receive their normal remuneration for that period of rest.

The complainant has stated that:

It should not cost me to take a week’s holiday and this way I am receiving less pay

Therefore, reference to overtime and its exclusion under S.I. No. 475/1997 based on the jurisprudence of the Court of Justice refers to a payment that is not permanent, arises occasionally, is not a task intrinsically linked to the contract that requires the employee to work the hours.  Such overtime must be distinguished from regular rostered overtime that are a normal pattern of the working week every week.

In Chief Constable of the Police Services of Northern Ireland and Northern Ireland Policing Board v Alexander Agnew and others [2019] NICA 32 stated at paragraph 22 when citing Sash Window Workshop Lt v King [2018] IRLR 142 that the right to paid annual leave is expressly set out in Article 31(2) of the Charter, which Article 6(1) TEU recognises as having the same legal value as the Treaties.

In Sash the following questions were referred to the CJEU:

24      In those circumstances, the Court of Appeal of England and Wales (Civil Division) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

(1)      If there is a dispute between a worker and employer as to whether the worker is entitled to annual leave with pay pursuant to Article 7 of Directive 2003/88, is it compatible with EU law, and in particular the principle of effective remedy, if the worker has to take leave first before being able to establish whether he is entitled to be paid?

(2)      If the worker does not take all or some of the annual leave to which he is entitled in the leave year when any right should be exercised, in circumstances where he would have done so but for the fact that the employer refuses to pay him for any period of leave he takes, can the worker claim that he is prevented from exercising his right to paid leave such that the right carries over until he has the opportunity to exercise it?

(3)      If the right carries over, does it do so indefinitely or is there a limited period for exercising the carried over right by analogy with the limitations imposed where the worker is unable to exercise the right to leave in the relevant leave year because of sickness?

(4)      If there is no statutory or contractual provision specifying a carry-over period, is the court obliged to impose a limit to the carry-over period in order to ensure that the application of the national legislation on working time does not distort the purpose behind Article 7?

(5)      If the answer to the preceding question is yes, is a period of 18 months following the end of the holiday year in which the leave accrued compatible with the right set out in Article 7 [of Directive 2003/88]?’

In relation to questions 2 to 5 the CJEU determined:

65      It follows from all the foregoing considerations that the answer to the second to fifth questions is that Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave.

In this case the complainant has not received paid annual leave rights that should have been paid to him when he was on annual leave. The right to annual leave pay, based on the normal weekly rate accrues until the termination of employment as determined in Sash at paragraph 65.

In Agnew the Court of Appeal also stated at para 24:

However, as we have indicated we do not consider that the lack of action on behalf of the claimants affects their claims. The obligation is on the employer to seek all information.  

 It would not logically follow that because a complainant is currently employed that their rights under the Directive would be lesser or not of equal weight. Therefore, it must follow that the right to paid annual leave based on normal weekly pay accrues over consecutive periods and those national practices are precluded from preventing a worker to carry over and accumulating paid annual leave rights not exercised, because his employer has failed to pay that leave appropriately. To hold the opposite would fundamentally undermine the importance given to the right to paid annual leave as prescribed in the Directive and Charter of Fundamental Rights and the legal value and status of that right in European Law.

Section 41(6) of the Workplace Relations Act 2015 states:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Therefore consistent with the Court of Justice of the European Union in Sash relating to the right of accrual that is not limitedand Dominguez du Centre Ouest Allantique [2012] 2.C.M.L.R 14 concerning the obligation to find a compatible interpretation of national law that complies with Community Law; the above provision that limits an action as it applies to paid statutory leave as  a social right underpinned by the Directive and in the Charter and CJEU jurisprudence;  only begins to run when the employment contract ceases. In other words, if the employment contract continues and by omission or design the employer does not properly remunerate the employee for annual leave based on normal weekly pay; Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, and at para 39 in Sash the Court of Justice stated:            

Similarly, such circumstances are liable to dissuade the worker from taking his annual leave. In that regard, it must be noted that any practice or omission of an employer that may potentially deter a worker from taking his annual leave is equally incompatible with the purpose of the right to paid annual leave (see, to that effect, judgment of 22 May 2014, Lock, C‑539/12, EU:C:2014:351, paragraph 23 and the case-law cited).

For these reasons the right to payment based on normal weekly pay cannot be expunged but accrues; accumulates and carries over where not paid.

Has a contravention occurred in this case?

The employer has stated both in their submission and at the hearing that they have not included rostered overtime when calculating the complainant’s annual leave.

Section 20(2) of the Act states:

(2) The pay in respect of an employee’s annual leave shall—

 (a) be paid to the employee in advance of his or her taking the leave,

 (b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate

On the facts it would appear that a contravention has occurred; however, the respondent employer states in their submission:

13. Secondly the claimant appears to be claiming that he is entitled to be paid 48 hours holiday pay. When the calculations are broken down the claimant believes he should be paid 48 hours by 4 weeks wages which is 4 weeks x 48 hours x €13.20 = €2,534.40. as we have outlined above the claimant was in fact paid 26 days holidays, which when broken down this equates to 26 days x 8 hours x €13.20 for which the claimant was paid a total of €2,745.60.

14. Therefore, it is our submission that the employee have been allocated an excess of 12 hours annual leave.

In turn this was rebutted by the complainant who made a very detailed submission dated 17th of January 2020 reconciling the days and that based on an email from the payroll department dated 3rd of January 2019 that:

“You have 12 days in this holiday year which runs up to the 28th of February. They need to be used by the end of May so there is no hurry.”

On these facts it would appear that while the complainant did receive payment for holidays amounting to 26 days, they related to annual leave that was accrued.

The complainant has provided payslips that show that holiday pay excludes rostered overtime. That fact is not disputed by the employer.

The clamant recommenced his employment in or around the August 2018 and previously worked from August 2016 to June 2018. The earlier period is out of time for making any claim based on the CJEU determining that time runs from cessation of employment. The complaint form was lodged with the WRC on the 12th of March 2020. However, the period since August 2018 is in scope and not subject to time limits until the employment contract ends, as elaborated upon in Sash:

65      It follows from all the foregoing considerations that the answer to the second to fifth questions is that Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave

Therefore paid annual leave rights accrue from the August 2018 and as supported by Lock, rostered overtime should be included in normal weekly pay:

25. Applying that general rule, the court held that any inconvenient aspect linked intrinsically to the performance of the tasks the worker is required to carry out under his contract of employment and in respect of which a monetary amount is provided which is included in  the calculation of the workers remuneration, such as, in the case of airline pilots, the time spent flying, must necessarily be taken into account for the purposes of the amount to which the worker is entitled during his annual leave.

While Lock facts relate to basic pay and the inclusion of commission in determining normal weekly pay, the principles enunciated and case law relied upon also apply in this case and rostered overtime, as they relate to the calculation of normal weekly pay. And under Question 3 the CJEU in Lock at paragraph at 26 it was stated:

In this respect, it should be observed at the outset that remuneration paid in respect of annual leave must, in principle, be determined in such a way as to correspond to the normal remuneration received by the worker.

Normal Weekly Pay should be calculated to include rostered hours which is 48 hours x hourly rate.

The annual leave week in fact is paid at 40 hours x hourly rate (€13.20 per hour).

In a relevant leave year the shortfall is 32 hours (4 weeks x 8 hours shortfall).

Public Holiday entitlement is not guaranteed as a social right under the Working Time Directive or in the Charter of Fundamental rights. This means that national provisions govern how public holiday entitlement should be calculated. Those provisions state in regulation S.I. 475 of 1997:

( 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

Therefore, overtime is not included when determining the amount to be paid for a public holiday.

The employer accepts that the complainant is required to work overtime of 8 hours per week and has been a permanent requirement of the contract. Therefore this does constitute normal remuneration and should be included when calculating holiday pay (4 weeks) as to do otherwise would act to dissuade a worker from taking their holiday. Under the Directive and the Charter of Fundamental Rights, the right to paid annual leave cannot be expunged and continues until the employment contract ends.

Where the employer has failed to properly pay the worker based on normal weekly pay and in this case that includes rostered overtime for the purposes of 4 weeks annual leave, the underpayment accrues. Holiday pay should be paid in advance and failure to pay the correct holiday pay is a breach of the Directive and also of the Organisation Working Time Act 1997 as amended. The employer accepts that he is not including rostered overtime in the calculation of holiday pay. The defence relied upon by the employer that the statutory regulations made pursuant to the Act excluded overtime cannot be relied upon when calculating 4 weeks annual leave prescribed as a right under the Directive. This arises as national provisions that are inconsistent with the Directive and the subsequent CJEU case law, must first be interpreted so that they do in fact align with the intent of the Directive and CJEU case law.

Therefore, reference to overtime and its exclusion under S.I. No. 475/1997 based on the jurisprudence of the Court of Justice refers to a payment that is not permanent, arises occasionally, is not a task intrinsically linked to the contract that requires the employee to work the hours.  Such overtime must be distinguished from regular rostered overtime that are a normal pattern of the working week every week.

The obligation under the Directive is on the employer to keep records, to prove that they are in compliance with the Directive and that a worker does receive their correct annual leave and that also includes the correct payment based on normal weekly remuneration and the normal weekly rate.

On the evidence and facts presented by the complainant and also the acceptance by the employer that they don’t include rostered overtime in the annual leave payment calculation, I determine that the employer is in breach of the Directive and the Organisation Working Time Act 1997. It is also a fact thar the breach continued after the complaint was lodged as evidenced by the respondent’s supplementary submission in late July 2021.

Excluding core components of normal remuneration deters an employee from taking their full statutory annual leave. To exclude core elements from paid holiday entitlement such as rostered hours over and above basic contractual hours and only to calculate the normal weekly rate based on what is categorised as basic contractual hours; in this case stated as 40 hours per week, seriously undermines the social right to paid annual leave based on normal remuneration and the overriding purpose of the Directive.

As stated in Sash:

Similarly, such circumstances are liable to dissuade the worker from taking his annual leave. it must be noted that any practice or omission of an employer that may potentially deter a worker from taking his annual leave is equally incompatible with the purpose of the right to paid annual leave (see, to that effect, judgment of 22 May 2014, Lock, C‑539/12, EU:C:2014:351, paragraph 23 and the case-law cited).

CA-00035218-01

The complainant states:

“I normally work 48 hours per week but only receive holiday pay at 40 hours per week. I have raised this query with my employer but have been told that everybody gets paid those hours”

Section 27 (3) of the Organisation Working Time Act 1977 as amended states that:

(3)  A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c)  require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.

I declare that CA-00035218-01 is well founded and that annual leave should be based on the normal weekly rate of an employee’s pay for the purposes of section 20(2) of the Act:

(2) The pay in respect of an employee’s annual leave shall—

 (a) be paid to the employee in advance of his or her taking the leave,

 (b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate

  And that the normal weekly rate shall be determined by the employer to include rostered overtime.

I require the employer to calculate the normal weekly rate to include rostered overtime. The normal weekly rate based on the facts of this complaint is 48 hours x hourly rate of €13.20= €633.60. The normal weekly rate shortfall is 8 hours x €13.20= €105.60.

 In order to comply with this statutory provision and allowing for the fact that since the date of lodgement of the complaint the contravention continued; and as determined by the CJEU paid annual leave rights accrue and continue based on the failure or omission of the employer, I also require the employer to pay the complainant all shortfalls in holiday pay from the date of commencement of employment in August 2018 to the date of this decision. The calculation of holiday pay to be based on the normal weekly rate to include rostered overtime, which for the purposes of the hearing was a 48-hour week at the appropriate hourly rate (€13.20). The normal weekly rate to be the sum that is equal to the average weekly pay of the employee calculated over—

(a) the period of 13 weeks ending immediately before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs,

The employee had formally requested that he receive the normal weekly rate of pay when on annual leave and this was denied. Allowing for the circumstances of this case in addition to requiring the employer to pay all outstanding holiday pay based on the shortfall as detailed which are due as of right; I also determine that compensation should also be awarded. I also award the employee 4 weeks compensation; based on the normal weekly rate to include rostered overtime, arising from the employer’s failure to pay annual leave to include rostered overtime when requested to do so. This compensation based on his normal weekly rate is €2534.40 and is made having regard to my obligation to ensure that an award is proportionate and dissuasive. I require that the employer pay compensation of €2534.40 to the complainant.

CA-00035218-02

The complaint for 8 hours pay regarding a shortfall in payment for the specified 2 Public Holidays is well founded.

The complainant states that Public Holidays should be paid based on his 12-hour shift pattern and relies on:

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:

At the hearing the two public holidays in dispute were January 1st and March 17th, 2020, where the complainant was claiming 12 hours. At the hearing and also in the employee’s submission the employer appears to have acceded to the request that those two days should be paid as 12 hours shifts.

The written contract of employment is silent on the hours of work and shift patterns. All hours are paid at a flat rate including hours worked over and above a standard working week. In the employer’s submission it states that the standard working week is 40 hours and required rostered overtime of 8 hours. The employee works 4x 12 hours shifts. If an employee works 12 hours on a public holiday, a paid day off equates to 12 hours in this case, in so far as they had not exceeded the 40-hour week. However, where a public holiday is worked, and part of the shift exceeds 40 hours, that part now constitutes overtime and under the statutory regulation overtime for the purposes of public holiday is not included in the calculation of public holiday pay, that part is excluded for payment as detailed by section 21 of the Act:

( 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,

The employer has accepted that these two public holidays should be paid based on a 12-hour shift basis and I order that the employer pay January 1st, 2020, and March 17th, 2020, on that basis -as the employee received payment for these two days based on an 8-hour day which amounts to a shortfall of 8 hours x the appropriate hourly rate which per the written employment contract is €13.20 per hour=€105.60.

Finally I have not addressed the matter of also pursuing a claim under the Payment of Wages Act concerning unlawful deductions as per the Employment Regulation Order and the right to include rostered overtime in the calculation of holiday pay, as the claims as detailed fall under the Organisation Working Time Directive and are consistent with the narrative in the complaint form.

Normal weekly rate-rostered overtime