DWT2214

SUBJECT:

1.Appeal of Adjudication Officer Decision No(s)Appeal of an Adjudication Officer Decision No(s) ADJ-00028656, CA-00035218-001

BACKGROUND:

2.The Employer appealed the Decisions of an Adjudication Officer to the Labour Court on the in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 9 December 2021. The following is the Decision of the Court.

DETERMINATION:

This is an appeal by Top Security Limited against a Decision of an Adjudication Officer ADJ-00028656 CA-00035218-002 in a complaint made by Mr Brian Scully under the Organisation of Working Time Act 1997 (the Act), dated 31 July 2021.

This case is linked to another appeal relating to the same employee ADJ-00028656 CA-00035218-001 - DWT2214.

The appeal before the Court relates to the calculation of pay for public holidays. The Adjudication Officer found that Mr Scully’s complaint in relation to the calculation of his pay for public holidays was well founded and that his payment for public holidays should be based on a 12-hour shift basis. Top Security Limited lodged an appeal to the Labour Court on 08 October 2021.

A hearing of the Labour Court was held on 9 December 2021.

For ease of reading, the parties are referred to in this Determination as they were at first instance. Hence, Mr Scully is referred to as the Complainant and Top Security Ltd is referred to as the Respondent.

Cognisable Period

The complaint was submitted to the WRC on 12 March 2020. Section 41(6) of the Workplace Relations Act 2015 imposes time limits for the lodging of complaints under certain employment enactments, including the Act, as follows: - “(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, the relevant period for consideration by the Court is the period from 13 September 2019 to 12 March 2020. When invited to comment on this matter, the Complainant withdrew his claim in relation to the public holiday on 17 March 2022, as it post-dated the complaint lodged to the WRC.

Background

The Complainant commenced employment on the 13 December 2018 as a Mobile Supervisor. The Complainant works 12-hour shifts and is paid €13.20 per hour. It is accepted that the Complainant works most public holidays and is paid correctly. On 01 January 2020 he did not work and received no public holiday entitlement for that date.

On 03 December 2020, the Respondent paid the Complainant 8 hours pay in respect two public holidays - 01 January 2020 and 17 March 2020. The matter in dispute relates to the calculation of pay for those public holidays, where the Complainant was not rostered to work on that day.

The original complaint to the Workplace Relations Commission (WRC) was that the Complainant received no public holiday entitlement for two public holidays. At the WRC hearing the Respondent conceded the claim in principle, but a secondary issue arose as to how payment for the public holiday was calculated.

The Adjudication Officer noted that the employer appeared to accept that the public holiday entitlement should be paid as 12-hour shifts. On the basis that the Complainant had received payment for his public holiday entitlement based on an 8-hour day, he ordered that the Respondent pay the shortfall.

The matter in dispute before the Court relates to the calculation of pay for a public holiday, where the Complainant was not rostered to work on that day.

The Respondent’s position is that the Complainant has received all entitlements as required by the Act. The Complainant’s working week is comprised of 40 hours per week and 8 hours of regular roster overtime, worked over a 4-day period. That working pattern is standard in the security industry where regular rostered overtime is expected.

His public holiday was correctly calculated based on one-fifth of his normal working week of 40 hours per week.

The Complainant submits that he did not receive the correct payment for his public holiday entitlement on 01 January 2020. The payment he received was calculated based on an 8-hour working day, rather than the 12-hour shift that he works. The Complainant submits that he is entitled to be paid 12 hours pay for his public holiday entitlement. As a result, he suffered a shortfall of 4 hours pay (4 x €13.20).

The Relevant Law

Section 21 of the Organisation of Working Time Act 1997 sets out provision relating to entitlement in respect of public holidays as follows:.
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 theThird 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 forpublic 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 ofsection 21, time off granted to an employee under that section orsection 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.

Deliberation

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,

The Complainant was paid 8 hours pay for his entitlement to the public holiday that fell on 01 January 2020, when he was not rostered to work. 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.

This case is linked to DWT2214. In that determination, the Court made a finding of fact that the Complainant’snormal working weekis 48 hours per week. It follows that the Complainant was entitled to be paid one fifth of 48 hours, which equals 9.6 hours pay, for a public holiday which falls on a day he is not rostered to work.

As the Complainant received 8 hours pay rather than 9.6 hours pay, it follows that his complaint in relation to the public holiday that fell on 01 January 2020 is well founded.

The Court determines that the Respondent, in complying with Section 21 of the Act, should apply the Complainant’snormal weekly rateof pay, based on a 48-hour working week, when calculating his public holiday entitlement on a day that he is not rostered to work.

The Complainant was entitled to be paid one fifth of hisnormal weekly rateof pay (€13.20 x 48 hours) when granted his public holiday entitlement for 01 January 2020. The Complainant suffered a shortfall of 1.6 hours pay for that day which amounts to €21.12 (1.6 x €13.20 hourly rate of pay). The Court requires that the Respondent pay the shortfall due to the Complainant.

The decision of the Adjudication Officer is varied accordingly.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
DC	______________________
18 February 2022	Deputy Chairman