Complainant

Respondent

Parties

Paula  Spain

Mater Private Hospital

Representatives

Irish Nurses and Midwives Organisation

IBEC

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-00038412-001

26/06/2020

The complaint arises under the Organisation of Working Time Act, 1997. 

There are three complainants in total.  While all are separate complaints and will be adjudicated separately agreement was reached between the parties that, on account of their similarity, the three cases would be heard together.

The INMO maintains that the employer is in breach of Regulation 5(2) (1) (a) in respect of the calculation of Public Holidays.

The three Complainants are working as nurses in the Day Ward in the Hospital, a five-day Service and would normally be closed on Saturdays and Sunday.

The practise in the Hospital prior to January 2020 was that when a Public Holiday fell during the week the Unit would be closed and the employees would be paid as normal. 

From January 2020 this arrangement was changed, and the complainant was informed that Public Holidays were compiled with Annual Leave, therefore, the arrangements for payment was changed and she was adversely affected by this as she would normally be expected to work 10.5 hours and would now only receive 7.8 hours payment.

The INMO wrote to the Hospital on the 29thApril 2020 regarding this matter and included relevant case law.

The Employer replied to the union by way of letter dated the 11thMay 2020 and rejected the union’s position. The INMO responded on 15thJune 2020. As it was not possible to resolve this matter it was referred to the Adjudication Service of the Workplace Relations Commission. 

              The complainant is employed as a Staff Nurse in the Hospital and is on a 0.788 Whole Time Equivalent Contract. 

Normally she would work two days per week and on the second week would work two days during the week and a Saturday. The length of each day is 12.5 hours. She takes two hours Parental Leave until June 2021and her normal working day is 10.5 hours. 

Her hourly rate of pay is €25.32. In respect of the breaches of the legislation the following applies: - (All dates 2020 and the unit was closed on each occasion and she had to take annual leave as indicated).

1st Jan 12.30 hrs Annual Leave, (i.e., 12.5 -7.8 x €25.32 = €119.00 owed)

17th Mar 10.30 hrs Annual Leave, (i.e., 10.5 -7.8 x €25.32 = €68.36 owed)

13th April 12.30 hrs Annual Leave, (i.e., 12.5 -7.8 x €25.32 = €119.00 owed)

3rd Aug 10.30 hrs Annual Leave, (i.e., 10.5 -7.8 x €25.32 = €68.36 owed)

26th Oct 10.30 hrs Annual Leave (i.e., 10.5 -7.8 x €25.32 = €68.36 owed)

28th Dec 2020 12.30 hrs Annual Leave (i.e., 12.5 -7.8 x €25.32 = €119.00 owed)

The Organisation of Working Time Act, 1997 sets out the Statutory Entitlements in respect of Employees in relation to Public Holiday entitlements. 

Section 21 of the Act provides Employees with Public Holiday entitlements as follows: -

1.       When the Employee is Rostered to Work on the day on which a Public Holiday falls and does not work on the day, he/she is entitled to a day off with pay on that day. 

2.       Where the Employee does not work or is not Rostered to work on the Public Holiday, he/she is entitled to one of the other Compensatory Options provided for by Section 21, including an additional day’s pay (or additional days annual leave or a day off within the month).

The question arises as to what constitutes a day’s pay”.  Section 22 of the Act provides that “a day’s pay” is to be calculated in accordance with the Regulations (Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 S.I. No.475 of 1997).’

Regulation 4 provides that the rate at which an employee is paid in respect of a day off and the rate of an employee’s additional day’s pay are to be determined in accordance with Regulation 5. 

Regulation 5(1)(a) provides the formula for when the employee works (or is rostered to work) on the public holiday and Regulation 5(2)(a) provides the formula for when the employee does not work (or is not rostered to work) on the public holiday.  

Where the employee works (or is rostered to work on the public holiday) the employee’s entitlement is to the rate paid to the employee in respect of the ‘normal daily hours’ last worked by him or her before that public holiday. 

Where the employee does not work (or is not rostered to work) on the public holiday, the employee’s entitlement is a sum equal to one-fifth of his or her “normal weekly hours” prior to the public holiday.  

The Labour Court has interpreted the ‘normal daily hours last worked by the employee’ to mean that the employee is entitled to be paid at the same rate in respect of public holidays as that paid to him or her while at work (Headway Security Services Limited v Peter Finn Determination No.  DWT1579 and Cheshire Ireland –AND- Margaret Gallagher Determination No. DWT1673 - attached for your information). 

The legislation and the case law demonstrate that the Hospital has misinterpreted the legislation in respect of the public holiday entitlement of employees who are rostered to work on a public holiday but do not do so because the Department is closed.  In such a circumstance, it is incorrect to determine that the employee’s entitlement is to a sum equal to one-fifth of his or her “normal weekly hours”.  

The correct formula to be used is that which is set out in Regulation 5(1)(a) and which has been interpreted by the Labour Court to mean that the employee concerned is entitled to be paid at the same rate in respect of the public holiday as that paid to him or her while at work.  The practice, therefore, of deducting 1.95 hours annual leave in respect of public holidays from staff who work full-time hours over 4 days is in contravention of the Organisation of Working Time Act, 1997.

The complainant relies on Labour Court Recommendations DWT1673 and DWT1579 which confirm that the position adopted by the respondent is incorrect.

It will also be noted that in relation to the Labour Court Determination DWT1673 that the Labour Court awarded compensation of €1,000 in respect of breach of the Organisation of Working Time Act in respect of each employee concerned.    

Nurses in the Day Therapy work 3 or 4 days over a 5-day week and therefore the calculation of 7.8 hours is incorrect. 

In such circumstances the INMO is respectfully requesting that the Adjudication Officer finds that this claim is well founded and accordingly issues a determination that the employer is directed to correct this error in respect of the Complainant and that she is compensated either in financial terms for the additional hours or that her hours are reinstated and any compensation which the Adjudicator finds is fair and appropriate is applied.

In particular we wish to draw the attention of the Adjudicator the Determination of the Labour Court in Meades Bar t/a Victoria Café v Smalli DWT1727 which determined: -

 “Complainant is not limited to recovering the economic or monetary value of the payments withheld. An Adjudication Officer, and this Court on appeal, may award compensation of such amount as is just and equitable having regard to all the circumstances subject to the upper limit of two years pay.

The Respondent is directed to pay the Complainant the sum of €2,000.00 compensation which is inclusive of the outstanding annual leave and public holidays payments as found by the Court above. For the avoidance of doubt this amount is not in the nature of remuneration and should not be treated as such for the purposes of tax or other deductions”.  

The complaint is brought under the Organisation of Working Time Act, 1997.   

All three Complainants have over ten years’ service. Full-time employees in this category (working thirty-nine hours per week) are entitled to 210.6 hours annual leave (Twenty-seven days at 7.8 hours each), part-time employees are entitled to a pro-rata portion of this annual leave.

The nine public holidays per year and a former privilege day are added to the annual leave allowance. 7.8 hours are allowed in respect of each public holiday. The calculation is as follows:

Nine Public Holidays and 1 former Privilege Day = 7.8 hours x 10 = 78 hours

The Annual Leave Calculation is:

Allowance for full-time equivalent working 39 hours per week = 210.6 hours

Public Holidays and Privilege Day = 7.8 hours x 10 =                       78 hours

Total =                                                                                                       288.6 hours

Part-time employees are entitled to a pro-rata fraction of the 288.6 hours allowed for the full-time equivalent, based on the number of hours they work.

The complaint was lodged on 22 June 2020 and therefore the reference period is 21 December 2019 to 22 June 2020. This gives rise to seven public holidays in that period; December 25th and 26th 2019, January 1st March 17th, May 4th and June 1st, 2020.

All three Complainants work in the Day Ward in the hospital, prior to November 2020 the Day Ward was opened Monday-Friday, it was, and still is closed on Public Holidays.

The complainant began her employment with the Respondent on September 7th, 1998 as a Staff Nurse.

In January 2009 her hours decreased to 25 hours per week (0.64 of a full-time equivalent), at this time she worked 2 days per week (2 x 12.5 hours). On most rostered days she took two hours Parental Leave per shift.

As she had no normal working days, under regulation 5(2)(a) of S.I. No. 475 of 1997 she was entitled to one-fifth of her normal working week (i.e. one-fifth of 25 hours), being 5 hours for each public holiday. In respect of each public holiday Ms Spain received 4.99 hours annual leave (7.8hours x 0.64).

What occurred on each of the seven public holidays in the reference period is detailed below:

December 25th, 2019, January 1st, March 17th, April 13th, 2020 rostered to work 12.5 hours and took 12.5 hours annual leave (plus two hours parental leave on March 17th).

December 26th, 2019 May 4th June 1st, 2020; not rostered to work.

Wednesday 1 January 2020; Rostered to work 12.5 hours and took annual leave 12.5 hours.

Tuesday 17 March 2020; Rostered to work 12.5 hours and took annual leave 10.5 hours and 2 hours Parental Leave.

Monday 13 April 2020; Rostered to work 12.5 hours and took annual leave 12.5 hours.

Monday 4 May, Monday 1 June 2020. Not rostered.

The Organisation of Working Time Act 1997 (section 21) provides:

21. Entitlement in respect of public holidays

(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.

The question of what amounts to a day’s pay for these purposes is provided for in the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 (S.I. No. 475 of 1997)

Regulation 4 provides that the rate at which an employee is paid in respect of a day off and the rate of an employee’s additional day’s pay are to be determined in accordance with Regulation 5 which provides as follows in relation to employees who have a fixed rate of pay or salary (as is the case here):

If the employee concerned works or is normally required to work during any part of the day which is a public holiday, then the relevant rate in respect of that public holiday shall be the sum that is equal to the sum paid to the employee in respect of the normal daily hours last worked by him or her before that public holiday.(5(1)(a))

If the employee concerned does not normally work on a day which is a public holiday, then, the relevant rate in respect of that public holiday shall be the sum that is equal to one-fifth of the sum paid in respect of the normal weekly hours last worked by the employee before that public holiday. (5(2)(a))

Regulation 6 provides that for a job-sharing employee who does not work or is not normally required to work on a public holiday, the relevant rate of pay is one-tenth of the amount (including regular fixed bonuses/allowance but excluding overtime) paid for the last two normal working weeks before the public holiday. Provided that this figure does not exceed what they would be entitled to if regulation 5(1)(a) applied to them.

In the Cheshire Ireland v Gallagher decision of the Labour Court (DWT1673) referred to in previous correspondence, Ms Gallagher worked 19 hours per week: 7.5 hours on a Monday and Tuesday and 4 hours on a Friday.  Her weekly rate of pay did not vary, and she did not work on public holidays. 

The Labour Court held that she did not normally work on Wednesdays and Thursdays and therefore in accordance with regulation 5(2) when a public holiday falls on either of those days she was entitled to “normal day’s pay” for which, in accordance with its provisions, the appropriate rate is one-fifth of a week's pay.                                                                                       

In respect of public holidays which fell on a day that she was rostered to work but had the day off (e.g. a Monday she would normally work), the Labour Court found that she was entitled to be paid in full for the 7.5 hours she would have worked.

In the related case of Cheshire Ireland v Donaghey (DWT1674).  Ms Donaghey also worked 19 hours per week but her working pattern was 4 hours on Tuesdays and 7.5 hours on Wednesdays and Thursdays.  As all three public holidays which were the subject of her claim fell on a Monday when she was not normally rostered to work, the Labour Court found that the employer’s approach of granting one fifth of her weekly hours (3.8 hours) for each public holiday in the form of extra annual leave was compliant with the Regulations. 

Headway Security Services Limited v Peter Finn DWT1579 is a good example of this. 

In that case, Mr Finn who was a security guard worked 39.5 hours a week.  He normally worked 13.25 hours on a Monday and Wednesday, 9 hours on a Thursday and 4 hours on a Saturday.  For public holidays which fell on a Monday the premises were closed and he was not required to attend work. 

The Labour Court state that the employee was “entitled to a be paid at the same rate in respect of public holidays as that paid to him while at work” i.e. he would have worked 13.25 hours and was entitled to be paid for 13 hours.  

The complainant had no normal working days and therefore were entitled to a figure equal to one-fifth of their normal working week in respect of each public holiday. The difference between what the Complainants received and their strict statutory entitlement was negligible.

The Respondent respectfully requests the Adjudication Officer finds that the claims taken are without merit and therefore must fail, and to find in favour of the Respondent.

This is a complicated matter.

The complainant works a ten-and-a-half-hour shift.  Prior to January 2020, when the unit in which she worked would close for a public holiday, she was paid for that day on the basis of her full ten-and-a-half-hour shift.

In January 2020 the arrangement changed.

The respondent calculated the entitlement using an averaging formula which resulted in the complainant being paid 7.8 hours and this is what gives rise to the complaint. She claims that she is considerably worse off in respect of each public holiday and detail was provided (outlined in parties submissions above).

Specifically, there is a dispute over the interpretation of the meaning of that section of the relevant Regulations determining how the payment should be made.

The situation where an employee actually attends for and works on the public holiday is not relevant to the complaint.

The union submits that where the employee works (or is rostered to work on the public holiday) the entitlement is to the rate paid to the employee in respect of the normal daily hours last worked by him or her before that public holiday. (Emphasis added by Adjudicator).

Where the employee does not work or is not rostered to work on the public holiday, entitlement is to a sum equal to one fifth of his or her normal weekly hours prior to the public holiday.

Section 22 of the Act provides that “a day’s pay” is to be calculated in accordance with the Regulations (Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 S.I. No.475 of 1997).’

Looking at those Regulations, regulation 4 provides that the rate at which an employee is paid in respect of a day off and the rate of an employee’s additional day’s pay are to be determined in accordance with Regulation 5 which provides as follows in relation to employees who have a fixed rate of pay or salary (as applies here):

If the employee concerned works or is normally required to work during any part of the day which is a public holiday, then the relevant rate in respect of that public holiday shall be the sum that is equal to the sum paid to the employee in respect of the normal daily hours last worked by him or her before that public holiday. (5(1)(a))

If the employee concerned does not normally work on a day which is a public holiday, then, the relevant rate in respect of that public holiday shall be the sum that is equal to one-fifth of the sum paid in respect of the normal weekly hours last worked by the employee before that public holiday. (5(2)(a))

So, two issues arise. The first is whether the complaint falls within the ambit of regulation 5 (1) or 5 (2). This will then answer the second question as to the correct method of calculating the entitlement when the day is not worked.

Specifically, does the complainant’s pattern of work, her roster etc bring her within the ambit of Regulation 5 (1) as she asserts. 

The complainant (and her colleagues in the related cases) submitted that they ‘normally’ worked on days on which public holidays fell.

While a complainant under this legislation is acting as an individual and there are no collective rights under such legislation it is nonetheless sensible and instructive to consider the pattern of work of each, and all of them by way of illustrative evidence specifically to establish what the ‘normal’ pattern of work is in the unit in which they are based.

The detail supplied in respect of the previous seven public holidays was that was to the effect that this complainant worked on four out of seven, a second complainant on only two out of seven and the third complainant on six out of seven. 

This means, looking at the incidence of working generally that of the twenty-one public holidays the group of complainants worked on twelve of the days (admittedly somewhat skewed by one complainant).

Nonetheless, it is persuasive as to whether the complainant is ‘rostered’ and the correct methodology for calculating the daily hours.

The union’s submission was that the complainants had a normal liability to work over five days (and occasionally six) and that the variations discernible in the patterns set out above may have more to do with the personal choice of the complainant (and the respondent‘s commendable and cooperative approach to accommodating them).

Therefore, is it ‘normal’ for them to do so?

Frequency is not the primary determinant of what is normal in this context. Looking at it from a negative point of view and asking the question; is there anything about their pattern of work that would result in them NOT working on a day on which a public holiday falls the answer would be no.

To the extent that industrial relations principles are helpful in answering the question the absence of any intrinsic impediment to their working on a public holiday brings it within the ambit of ‘normal’.

Further, there is an interesting passage in a letter from the respondent dated May 11, 2020 to the complainant’s union in which the following appears.

Nurses who work in the day therapy clinic which is only open Monday to Friday generally works 3 over 5 days of the week. Your members do not have a set pattern of days on which (e.g. Monday to Wednesday or Tuesday to Thursday). Their rosters change each month. Some weeks they may work their three shifts Monday to Wednesday while on others it could be Thursday to Saturday. Therefore, the vast majority of cases it is not possible to say the particular nurse always works on a Monday or a Friday for example.

In its concluding paragraph the respondent submission stated as follows.

All three Complainants had no normal working days and therefore were entitled to a figure equal to one-fifth of their normal working week in respect of each public holiday. The difference between what the Complainants received, and their strict statutory entitlement was negligible. The Respondent respectfully requests the Adjudication Officer finds that the claims taken are without merit and therefore must fail, and to find in favour of the Respondent.

Paradoxically, it is this fact that they had no ‘normal’ working days that means that (as a random occurrence) it would be normal that they would be rostered on a day on which a public holiday fell were the unit open.

This means that while the complainant was not rostered regularly, it would (again as a random occurrence) be quite normal that she could work a public holiday, or at least that there would be nothing abnormal about it happening

It is demonstrably clear that, in respect of this complainant (and her colleagues) she has received less than under the previous practice of the respondent (detail was provided) and than she now claims.

On this point the union submitted that the Labour Court has interpreted ‘the normal daily hours last worked by the employee’ to mean that the employee is entitled to be paid at the same rate in respect of public holidays as that paid to him or her while at work and relies on two decisions of the Labour Court

In Cheshire Ireland v Gallagher decision of the Labour Court (DWT1673) Ms Gallagher worked nineteen hours per week: 7.5 hours on a Monday and Tuesday and 4 hours on a Friday. 

Her weekly rate of pay did not vary, and she did not work on public holidays. The Labour Court held that she did not normally work on Wednesdays and Thursdays and therefore in accordance with regulation 5(2) when a public holiday falls on either of those days she was entitled to “normal day’s pay” for which, in accordance with its provisions, the appropriate rate is one-fifth of a week's pay.                                                                                       

In respect of public holidays which fell on a day that she was rostered to work but had the day off (e.g. a Monday she would normally work), the Labour Court found that she was entitled to be paid in full for the 7.5 hours she would have worked.

Importantly, perhaps critically the Labour Court observed in that decision that;

 ‘The clear purpose of the Regulations is to ensure that during public holidays an employee receives no less (or no more) than he or she would have received if he or she was working during the period in question’.

This is decisive and means that the current practise by the respondent does not comply with the regulations.

The complaint was made on June 22nd, 2020 and the is therefore the cognisable period is December 21st, 2019 to the date of submission.

There were seven public holidays in the reference period Wednesday 25 December 2019, Thursday 26 December 2019, Wednesday 1 January 2020, Tuesday 17 March 2020, Monday 13 April 2020, Monday 4 May 2020 and Monday 1 June 2020.

The complainant’s total losses arising from the incorrect application of the regulations was €562.08. I add €1000.00 in compensation for the breach of her rights under the Act.

Complaint CA-00038412-001 is well founded. I award the complainant €562.08 in lost wages and €1000.00 in compensation for the breach of her rights under the Act (this latter sum is non-taxable).

Public Holidays, calculation of wages.