ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00033495

Parties:

	Complainant	Respondent
Parties	Derek Conway	Go Ahead Ireland

Representatives

N/A

Brendan McCarthy, Stratis

Complaint(s):

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-00044312-001	24/05/2021

Date of Adjudication Hearing: 10/12/2021

Workplace Relations Commission Adjudication Officer: Breiffni O'Neill

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Specifically, I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

I explained the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021 and the parties agreed to proceed in the knowledge that decisions issuing from the WRC would disclose their identities.

The Complainant gave relevant sworn evidence at the hearing. While there were two employees from the Respondent in attendance, neither gave evidence at the hearing. A verbal submission was provided by their representative, Mr Brendan McCarthy, which is summarised below.

Background:

The Complainant stated that according to his contract of employment, he was entitled to an additional four days annual leave in respect of four public holidays that fell during the period he was on sick leave from 25 December 2020 until 28 March 2021. He is alleging that the Respondent failed to honour its contractual requirements however.

Summary of Complainant’s Case:

The Complainant stated that he was on sick leave from 25 December 2020 until 28 March 2021, a period over which there were four public holidays, namely 25 and 26 December, 1 January and 17 March.

He highlighted in his evidence that his contract of employment states that “Employees on sick leave will accrue an additional day’s holiday” and asserted that he did not receive any of these additional four days, which he claimed represented a breach of his contractual requirements.

Summary of Respondent’s Case:

The Respondent’s representative highlighted that this was a complaint under the Organisation of Working Time Act and that, in accordance with the requirements of the Act, the Complainant had received a day’s pay in respect of each of the four public holidays that fell during the period he was off sick from 25 December 2020 until 28 March 2021.

Findings and Conclusions:

THE LAW

Section 21 of the Organisation of Working Time Act 1997 states:

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 requiredto work.

FINDINGS

I note that the Complainant when questioned by the Respondent’s representative agreed that he had received a day’s pay in respect of each of the four public holidays that fell during the period he was off sick from 25 December 2020 until 28 March 2021, namely 25 and 26 December, 1 January and 17 March.

I am satisfied therefore that the Complainant has received his full entitlements under the legislation and that there has been no breach of same by the Respondent.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

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

Dated: 20th December 2021

Workplace Relations Commission Adjudication Officer: Breiffni O'Neill

Key Words:

Public holidays