Complainant

Respondent

Parties

Patrick  O'Donoghue

Tipperary County Council

Representatives

Arek Muszynski SIPTU

Keith Irvine LGMA

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-00044579-001

11/06/2021

The Complainant has been employed as a General Operative with the Respondent since January 2006 and is paid €1,486 per fortnight. He carries out overtime every second weekend on a rota basis shared with another General Operative and believes that he is entitled to have this worked overtime included in his calculation for holiday pay.

The Complainant commenced employment with the employer as a General Operative in January 2006.

At the start of February 2006, the Complainant commenced overtime work which was regular and rostered. This pattern of overtime consisted of working overtime every second week. Specifically, the pattern involved working 8am to 4.30pm daily Monday to Friday, back in the evenings 7pm to 9pm (overtime). In addition, weekends overtime included Saturday and Sunday morning from 8am to 11am 7pm to 9pm in the evenings. The following week the work involved a work pattern of 8am to 4.30pm Mon to Friday.

These arrangements continued for approximately two years although the evenings pattern changed from 2 hrs to 1.5hrs overtime. This pattern continued until August 2017 since when the Complainant has been doing rostered and regular overtime on weekends and public holidays.

The Respondent stated that the Complainant works as a General Operative and is employed at a Water Treatment Plant where he carries out overtime every second weekend on a rota basis shared with another General Operative.

Specifically, he works regular rostered overtime every second week which equates to an additional €253.06 on the weeks he works the overtime and zero on the weeks he does not.

The Respondent stated that the Complainant is not entitled to have his worked overtime included in his calculation for holiday pay because it is shared and is done on a rota basis.

The ‘leave year’ is defined in Section 2 of the Act as a year beginning on any 1st day of April and a complaint relating to annual leave must be submitted within six months of the end of the ‘leave year’.  This complaint in this instance was received by the Workplace Relations Commission on 11 June 2021 and the cognisable period is therefore the leave year from 1 April 2020 to 31 March 2021 and the period from 1 April 2021 to 11 June 2021.

I note from an email sent by the Complainant to the Respondent on 25 November 2019, furnished to me as part of the Respondent’s submission and not disputed by the Complainant at the hearing, that he works overtime every second weekend and that this is shared with his colleague.

I am therefore satisfied that the overtime worked by the Complainant within the cognisable period is done on a rotational basis and shared between two employees.

While the Complainant’s representative highlighted a number of cases to me, namely LCR 18118, LCR 19239, LCR 7135, LCR 7318, LCR 7365, LCR  10390 and LCR 10155, I am satisfied that, unlike the instant case, all of the overtime in those aforementioned matters was either regular or rostered.    

A number of Labour Court cases were also opened to me by the Respondent to support their contention the Complainant is not entitled to have his worked overtime included in his calculation for holiday pay because it is shared and is done on a rota basis.

Specifically, in the matter of Cork Corporation and Irish Transport and General Workers Union, LCR12762 it was recommended that “in those areas where overtime is worked on a daily basis and is regular and rostered it should be included in the calculation for holiday pay. The Court does not concede that overtime shared or on a rotational basis should be so included”

In addition, in the matter of MCM Security Limited and Tom Power, DWT0895, the Court stated that: “It is clear from the wording of both Regulation 3(2) and Regulation 5(1) that payment in respect of overtime is not reckonable in the calculation of pay for either annual leave and public holidays. The Union accepts that the Complainant’s normal pay is made up of 39 hours pay at the standard rate prescribed by the ERO for the sector and six hours overtime pay at the premium rate. It is clear that this overtime element is not reckonable in applying the formula prescribed by Regulation 3(2). It follows that the Complainant’s claim for the inclusion of this overtime in the calculation of the rate at which he is paid for annual leave cannot succeed in the present proceedings.”

Given the findings of the Labour Court in these two matters, and as the Complainant’s overtime is clearly shared and done on a rotational basis, as outlined in his own email of 25 November 2019, I cannot find in his favour in this case.

I find that the complaint is not well founded for the reasons outlined above.

Overtime; holiday pay;