FULL RECOMMENDATION
PARTIES : CARLOW COUNTY COUNCIL DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(S)ADJ-00032324/CA-00042933-002 This is an appeal by the Mr Eamonn Coughlan (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00032324/CA-00042933-002, dated 10 August 2021) under the Organisation of Working Time Act 1997 (‘the Act’). Notice of Appeal was received by the Court on 15 September 2021. The Court heard the appeal in a virtual courtroom on 21 April 2022. The Claim The Complainant alleges that Carlow County Council (‘the Respondent’) has undercalculated his public holiday payments for the duration of his employment with it in so far as the Respondent has failed to include regular and rostered overtime and various allowances when calculating his public holiday pay. He is seeking retrospective payment of the shortfall back to the date of commencement of employment and compensation for the alleged breaches of the Act in this regard. He referred his complaint to the Workplace Relations Commission on 8 March 2021. The claim did not succeed before the Adjudication Officer who states as follows in his written decision: I determine that CA-00042933-02 is not well founded as it seeks a declaration that public holidays should include rostered overtime.” The Factual Matrix The Parties aread idemin relation to the material facts.The Complainant commenced employment in 1999 and is currently employed by the Respondent as a Driver/Plant operator A. The arrangements that apply to his current post include payment of daily ‘regular and rostered’ overtime of a half hour at time-and-a-half and a half hour at double time, which amounts to 8.75 adjusted hours per week. His basic pay is €1,307.66 per fortnight (€653.83 per week). He is also paid a non-taxable ‘eating on-site’ allowance of €9.50 per week and receives an on-call allowance of €80.62 per week for each of the six weeks per year for which is required to be on-call. The Complainant’s Submission The Complainant submits that his “normal weekly pay” for the purposes of calculating his pay during periods of annual leave and for public holidays should be reckoned as €832.41 (i.e. basic pay plus regular and rostered overtime and allowances). The Respondent’s Submission The Respondent submits that it complies fully with sections 21 and 22 of the Organisation of Working Time Act 1997 and with the provisions of the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997. Statutory Time Limit As stated previously, the Complainant referred his complaint under the Act to the Workplace Relations Commission on 8 March 2021. As his claim relates to the calculation of payment for public holidays, in the Court’s judgment, the cognisable period covered by the claim – having regard to section 41(6) of the Workplace Relations Act 2015 - is the period 9 September 2020 to 8 March 2021. It is also the Court’s judgment that none of the cases cited by the Complainant are authority for the Court assuming, on the facts of the within appeal, an enlarged temporal jurisdiction over and above that specified by the Oireachtas. For the avoidance of doubt, the Court fully accepts the Respondent’s submission that the judgments inSash Windowsand inAgnew, respectively, for the reasons stated, do not support the Complainant’s submission that this Court – were it to uphold the substance of his claim that overtime payment should be included in the calculation of payment for public holidays – can award redress retrospective to the date of commencement of his employment in 1999. Calculation of Payment for Public Holidays Section 21(1) of the Act provides as follows in relation to public holiday benefits: “(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.” Section 22(1) enables the Minister to promulgate regulations for the purpose of determining the manner in which “an additional day’s pay” is to be determined for the purposes of section 21. The Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 SI No 475 of 1997 (‘the Regulations’) address these matters. Regulation 5(1)(a) expressly and unambiguously excludes overtime from the calculation of “an additional day’s pay”. It provides: “(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”. This Court has addressed the issue of the non-inclusion of overtime in the calculation of public holiday pay having regard to Regulation 5 of SI 475 of 1997. See, for example, the Court’s Determination inMCM Security Limited v Tom PowerDWT0895 where the Court stated: “It is clear from the wording of both Regulation 3(2) and Regulation 5(1) that payment in respect of overtime is not reckonable in the calculation of pay for either annual leave and public holidays.” Allowances Received by the Complainant The Complainant is in receipt of two allowances which he submits ought to be reckonable for the purposes of calculating payment for public holidays: a non-taxable eating on-site allowance of €9.50 per week and an on-call allowance of €80.62 per week for each of the six weeks per year for which is required to be on-call. In the Court’s judgment, neither of these two allowances is comprehended by Regulation 3(2). The eating on-site allowance is not treated as pay for taxation purposes. The on-call allowance does vary in so far as it is only payable when the Complainant is actually available for on-call duty outside core hours on six pre-determined weeks in any year. Conclusion For the reasons set out in the body of this Determination, the Complainant’s claim for retrospective payment of alleged underpayment for public holidays back to the date of commencement of employment fails. The Court’s judgment is that its jurisdiction is limited temporally to the cognisable period referred to earlier. It is also the Court’s judgment that the Respondent has properly calculated the Complainant’s pay in respect of the public holidays that fell during the cognisable period comprehended by the claim having done so in accordance with SI 475 of 1997. The claim that the calculation of the Complainant’s public holiday pay for the purposes of the Act should include regular and rostered overtime and an amount in respect of the allowances he is in receipt of, has not been made out. The decision of the Adjudication Office is, therefore, affirmed. The Court so determines
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