Complainant

Respondent

Parties

John  Neville

Accessible Community Transport

Representatives

John O'Neill CB & Associates

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-00042393-001

09/02/2021

The Complainant is employed as a mini-bus driver with the Respondent since 2013.

The Complainant works 39 hours for the Respondent. He has never received payment for public holidays and is entitled to nine per year. Since 26th March 2020 his hours have been reduced to 33 hours per week due to the impact of Covid-19. He has been asking for payment of his public holidays but the Respondent said it does not pay public holidays.

Following lodgement of his complaint, he was paid for public holidays where he worked forty hours in the five weeks prior to the public holiday from 10th August 2020 until 9th February 2021. He has not been paid for public holidays due when he is not rostered to work.

The Respondent has now paid public holidays due to the Complainant for a six month period prior to 9th February 2021 where the Complainant has physically worked forty hours in the five weeks prior to the public holiday. They have provided a schedule to the Complainant of their calculations and evidence of payment. The Complainant is working on an ad hoc basis and often does not always work 33 hours per week.

The Respondent has discharged its obligations to pay public holidays.

I heard and considered the submissions of the parties at the hearing.

S21(1) of the Organisation of Working Time Act 1997 provides an employee shall in respect of a public holiday be entitled to whichever one of the following his 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

S21 (4) of the Act provides that S21 (1) shall not apply to an employee (not being an employee who is a full-time employee) unless he has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before.

The Complainant’s complaint was received by the Workplace Relations Commission on 9th February 2021.

S41 of the Workplace Relations Act 2015 provides;

(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 contravention to which the complaint relates…..

(8) An Adjudication Officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7)( but not later than 6 months after such expiration)as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The Complainant said he was asking for his public holidays from his employer for some time. These are unpaid since 2013. The jurisdiction of an Adjudication Officer under the Organisation of Working Time Act 1997 to establish compliance with payment of public holidays is limited to a period of six months. This period can be extended to twelve months where there is reasonable cause. No application to extend time was made.

The Respondent has provided evidence of payment of applicable public holidays from 10th September 2020 to 9th February 2021 to the Complainant. The complaint is not well founded.

The complaint is not well founded.

Jurisdiction of Adjudication officer, public holidays