Complainant

Respondent

Parties

Mary  Rossiter

Boylesports 2 Unlimited Company Boylesports

Representatives

Act

Complaint Reference Nos.

Date of Receipt

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

CA-00041124-001

18/11/2020

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

CA-00041124-002

18/11/2020

The Complainant was a deputy manager with the Respondent, she commenced employment on 3 October 2018 and her employment ended on 11 September 2020. She was paid approximately €400 gross per week and €360 net.

The Complainant maintains that she did not receive her proper holiday leave entitlement nor her public holiday entitlement.

She said that she worked a total of 651.5 hours in 2020, which gives her an entitlement of 6.5150 annual leave days or 52.12 hours. The Complainant claims that the Respondent removed her annual leave due to her for the lockdown period 18 March 2020 to 29 June 2020.

The Complainant claims that she did not receive payment for 3 Bank Holidays during the lockdown period for Easter Monday 13 April 2020, May Day 4 May and June bank holiday 4 June 2020.

The Complainant said that she had taken 32 hours or 4 days annual leave and carried over 16 hours or 2 days which she claims that she was not paid for in 2019, but she had taken one of those day subsequently.

In summary the Complainant claims that she was entitled to 6.5150 days for 2020 and carried forward 2 days from 2019 less 5 days taken equals to 3.5150 on her cessation of employment.

The Complainant said the that she was paid for 1.44 days and therefore she has 2.075 days owning to her for Annual leave plus 3 days bank Holidays which all equates to 5.075 days or 40.60 hours.

The Respondent is a Bookmaker with branches throughout the Republic of Ireland, Northern Ireland and the UK.

It said when government announced lockdown of all Retail activity in March 2020 it took the decision to pay of its staff 100% of its salary, it said that it took the further decision to base this payment on the greater of contracted hours or average hours worked.

The Respondent said that it received the support offered by the government in the form of the Temporary Wage Subsidy Scheme (TWSS).

The Respondent said that it was closed due to Covid 19 for 14 weeks nationally (week 14 to 27 inclusive) and again for 3 weeks (week 34-36) in the region where the complainant had worked. 

The Respondent said that the Complainant was contracted to 32 hours per week. The Respondent paid her 37 hours per week for the period of closure based on average hours worked, which was 5 hours per week above her normal weekly rate of 32 hours as per her contract. The Complainant tendered her notice in Week 38 of the year.

The Complainant was not asked to work in the 17 weeks of closure, and she received payment on the basis of 37 hours weekly during that time although her contact is for 32 hours per week.

The Respondent’s calculation of the Complainant’s entitlements were as follows

Hours worked for the calculation for 2020 were - 1277.3

Holidays entitled in hours were - 102.18

Holiday entitlements in days to week 38 (following tendering notice) - 12.77

Holiday carried over 2 days

Total = 14.77

Less those holidays taken or assigned to her during lock down – 13 days

Balance remaining 1.77 days.

The Respondent claims that the Complainant was paid for all her accrued holidays.

In relation to the Bank Holidays.

The Respondent said that there were three bank holidays during this period, and she did not work them however she was paid for them at a rate of 8 hours per day. Therefore, there is nothing outstanding in payments to her.

CA-00041124-001 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Law

Times and pay for annual leave.

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—

( a) to the employer taking into account—

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee,

( b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

( c ) to the leave being granted —

(i) within the leave year to which it relates,

(ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or

(iii) where the employee —

(I) is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer,

within the period of 15 months after the end of that leave year. 

(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

(c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee’s remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.

(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 pay determined in accordance with regulations made by the Minister for the purposes of this section.

Conclusion

I note that the Complainant claims that she was informed that holiday pay could not be used to top up the TWSS and this was part of her frustration in this claim. I note that the Respondent had taken days from her and assigned them as Holidays during the pandemic. I note the Respondent said that the CEO had written to staff to inform them well in advance of its decision to assign holidays to staff during the Covid period. I am satisfied that there was regular interaction between the Respondent and staff at that time.

Under the Act, the Respondent may require its employees to take annual leave provided they consult with them at least one month prior to the taking of annual leave. The employer may seek an employee’s consent to take their annual leave during this period.  In the circumstance of this case, I deem it appropriate.

 I have considered both calculations presented in evidence by both the Complainant and Respondent, and I am satisfied that the Respondent’s calculations are credible. Accordingly, I find that the case is not well founded.

CA-00041124-002 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Law

Entitlement in respect of public holidays

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 required to work.

Section 22 of the Organisation of Working Time Act 1997 sets out supplemental provisions relating to the relevant rate of pay for public holidays as follows:.

22.— (1) The rate—

(a) at which an employee is paid in respect of a day off undersection 21, and

(b) of an employee’s additional day’s pay under that section,

shall be such rate as is determined in accordance with regulations made by the Minister for the purposes of that section.

(2) For the purposes of section 21, time off granted to an employee under that section or section 19shall be regarded as time worked by the employee.

The calculation of pay for public holidays is governed by the Organisation of Working Time (Determination of Pay For Holidays) Regulations, 1997, S.I. No. 475/1997 (the Regulations) which provides that:

4 Appropriate Daily rate of pay ("the relevant rate")

4. The following, namely—

(a) the rate at which an employee is paid in respect of a day off under section 21 of the Act,

(b) the rate of an employee's additional day's pay under that section, and

(c) the appropriate Daily rate of the employee's pay for the purposes of section 23 of the Act,

(each of which is referred to hereafter in these Regulations as "the relevant rate") shall be determined in accordance with the subsequent provisions of these Regulations.

5 Relevant rate for employees (other than certain categories of job sharer)

5. (1) If the employee concerned works or is normally required to work during any part of the day which is a public holiday, then—

(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.

(2) If the employee concerned (not being an employee to whom paragraphs (a), (b) and (c) of Regulation 6 of these Regulations apply) does not work on a day which is a public holiday, then—

(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 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 in respect of the normal weekly hours last worked by the employee 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 one-fifth of the average weekly pay (excluding any pay for overtime) of the employee calculated over—

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

or

if not, 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:

Provided that the relevant rate to which the employee concerned shall be entitled under this paragraph in respect of a public holiday shall not exceed the relevant rate to which he or she would be entitled in respect of that holiday if subparagraph (a) or (b), as the case may be, of paragraph (1) of this Regulation were to apply to him or her.

The calculation of pay for public holidays is governed by the Organisation of Working Time (Determination of Pay) Regulations 1997, S.I. 475 of 1997 (the Regulations).

Regulation 5(2) prescribes the formula for the calculation of the rate payable in respect of a public holiday in the case of an employee who does not work on a day which is a public holiday. It provides as follows: -

(2) If the employee concerned (not being an employee to whom paragraphs (a), (b) and (c) of Regulation 6 of these Regulations apply) does not work on a day which is a public holiday, then—

(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 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 in respect of the normal weekly hours last worked by the employee before that public holiday.

Conclusion

I accept that the Complainant was paid at a rate of 8 hours pay for those three public holidays. Regulation 5(2) provides that where an employee is not rostered to work, they are entitled to a sum equal to one-fifth of their pay for their normal weekly hours.

The Complainant did not work on any of these three public holidays, no one in the Respondent was rostered to work, as the Respondent was closed due to government restrictions to curtail the spread of Covid-19. I note the Complainant was paid for the three public holidays at a rate of an 8-hour day. The Complainant was contracted to work 32 hours per week, but she was paid at the rate of 37 hours per week over the 17 weeks during lockdown. Accordingly, I am satisfied that she was paid equivariant to the appropriate rate for those three public holidays, when considering that for the entire 17 weeks she was paid well over and above her normal weekly hours for each of those weeks. Accordingly, I find that the case is not well founded.

CA-00041124-001 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

I find the complaint is not well founded.

CA-00041124-002 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

I find the complaint is not well founded.

Organisation of Working Time Act