Complainant

Respondent

Parties

Matthew  Runciman

Waterford City and County Council

Complainant

Respondent

Anonymised Parties

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Representatives

Ger Malone SIPTU

Keith Irvine Local Government Management Agency (LGMA)

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Paternity Leave and Benefit Act, 2016

CA-00042496-001

15/02/2021

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

CA-00044557-001

10/06/2021

The complainant commenced employment as a full-time firefighter in March 2018.  He submitted two complaints to the Workplace Relations Commissions.  The first complaint under Section 27 of the Paternity Leave and Benefit Act, 2016 was received on 15 February 2021.  The second complaint under Section 27 of the Organisation of Working Time Act, 1997 was received on 10 June 2021.  Both complaints concern the calculation of pay.  The complainant claims the payments he received while on paternity leave and for public holidays when rostered off duty were incorrectly calculated.

The complainant works 42 hours per week on a 8 day shift cycle.  His gross pay per fortnight is €2573.37.

The respondent asserts that the complainant was provided with his correct entitlement to paternity leave under the Act and was paid the correct payment for public holidays in accordance with legislation.

CA-00042496-001

Complaint submitted under Section 27 of the Paternity Leave and Benefit Act, 2016.

The complainant applied for two weeks’ paternity leave in 2020 with the expectation that he would receive his ‘normal pay’ as provided for in Circular LG (P) 09/2016.  He was on paternity leave from 17 to 30 August 2020 and was paid for 86.5 hours at basic rate.  He received payment of €2040.46 while his ‘normal pay’ at that time was €2,593.10.  There was a shortfall of €552.64.

The complainant applied to the Department of Social Protection for paternity benefit and received payment of €490.00.  The respondent deducted €490.00 from his payment of €2040.46.

Paragraph 17 of the Circular states:

“Subject to paragraph 19 and 20, a person on New Parent Leave is entitled to normal pay”.

The complainant did not receive normal pay.  He was paid for 86.5 hours at his hourly rate and was not paid any allowances or premium payments, all of which form part of his ‘normal pay’.

The complainant was paid basic pay only for the period of his leave instead of his normal pay, which he asserts is a breach of the legislation.  The complainant seeks redress of two weeks remuneration for the breach of his rights.

CA-00044557-001

Complaint submitted under Section 27 of the Organisation of Working Time Act, 1997

The relevant rules relating to this complaint are contained in Article 5(1) and 5(2) of the Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997, (S.I. 475/1997) made under Section 22 of the Organisation of Working Time Act, 1997.  The complainant claims his public holiday payments are not calculated correctly as they are not based on 1/5th of his ‘normal’ pay.

The complainant works a shift pattern of days and nights.  The shift is an 8 day cycle.  He works two days of 9 hours (09.00 to 18.00) and two nights of 15 hours (18.00 to 09.00) and has four days off.  His hours of work average 42 hours per week.

The complainant is paid fortnightly.  His payment includes 78 hours at basic rate and 6 hours at a higher rate of 1.25 and 1.5.  (Per week 39 hours at basic rate, plus 4.25 hours being 1 hour at 1.25 and 2 hours at 1.5).  In addition, he receives Sunday premium, Night premium, Saturday pay and a Night Duty meal allowance.

He calculates his normal pay per fortnight, including allowances, to be €2,637.24 and per week over 4 days to be €1,318.62, the value of a day being equal to €329.65, giving an hourly rate of €31.39.  He estimates that half of the public holidays per year fall on days when he is due to rest.  On those days he is paid 8 hours basic pay, that is €188.71.  He claims there is a shortfall in his pay of €125.96 each time he is rostered off on a public holiday.  This shortfall arises as the respondent does not take account of the fact he works a 42 hour week or of the regular allowances that are included in his normal pay per fortnight.

The complainant claims the incorrect calculation has been applied since he commenced work in March 2018.  He estimates his loss over the whole period of his employment to be €2,267.28.

The union, on behalf of the complainant, cited the following cases in support of the claim:

Cavan County Council v SIPTU LCR20357, Stablefield Limited v Lacramioara DWT1117, King v The Sash Window Workshop Ltd Case C=214/16, Chief Constable of PSNI v Agnew (2019) NICA 32 and Von Colson and Kamann v Land Nordrein-Westfalen.

The complainant requests a finding as follows:

1)      The complaints are well founded.

2)      Award appropriate compensation in addition to the nominal losses incurred.

CA-00042496-001

Complaint submitted under Section 27 of the Paternity Leave and Benefit Act, 2016.

The complaint, per the WRC complaint form, is stated as:

“In summary, I have not received the correct amount for Paternity leave as I did not receive my normal pay.  I was paid less.”

The respondent refutes the complaint asserting that the complainant was provided with his correct entitlement under the Act.  The complainant applied for and was granted two weeks paternity leave in accordance with the legislation.  He took paternity leave from 17 to 30 August 2020.

For the two week period of paternity leave the complainant was paid €2,016.18 gross, inclusive of a deduction of €490.00 which he claimed directly from the Department of Social Protection.  This is the respondent’s normal procedure where employees are paid their normal pay (top-up) for paternity leave, less their Department of Social Protection payment.

The respondent provided the complainant with his continuous leave of two weeks’ in accordance with the Act.  He received his Department of Social Protection benefit for the leave along with a top-up from his employer to total his normal pay for the period of paternity leave.  The complainant received his entitlement of paternity leave under the Act.

CA-00044557-001

Complaint submitted under Section 27 of the Organisation of Working Time Act, 1997

The complaint, per the WRC complaint form, is stated as:

“In summary, my public holiday payments are not calculated correctly, they are not based on 1/5th of my ‘normal’ pay.”

The respondent asserts that the complainant received his correct payment for public holidays in accordance with the relevant Act.

The complainant is employed as a full-time firefighter.  He commenced employment on 26 March 2018.  Full-time firefighters operate on a 4 shift system, introduced on 31 October 2005.  There are four watches.  The shift system is designed to provide continuous cover throughout the year, subject to change from time to time. 

The current system operates on a cycle of 2 day shifts and 2 night shifts worked back to back.  Each cycle is separated by 4 off days.  The day shift starts at 09.00 and ends at 18.00.  The night shift starts at 18.00 and ends at 09.00 the following day.

The 4 shift system agreement states that in relation to pay for public holidays the “Hours actually worked on the Public Holiday between 00.01 and 24.00 hours, attract additional payment at basic rate x 2.  Staff rostered off, are paid 8 hours at basic rate, in lieu of Public Holiday.”

The 4 shift system agreement provides that the average working week is 42 hours over an 8 week cycle.  Hour 40 is paid at a rate of 1.25 of basic and hours 41 and 42 are paid at a rate of 1.5 of basic for each hour. 

On average, over the 8 week cycle, 21 hours between 00.01 and 24.00 are worked on a Sunday.  These hours are paid at a rate of 2 times basic rate.  There is a flat rate payment of €9.95 for working on a Saturday.  These Saturday and Sunday payments are superannuable.

The 4 shift system agreement provides that Force Majeure leave, Compassionate leave and Paternity leave are paid at basic rate only, i.e. the hour 40,41 and 42 premium, night duty premium and Sunday premium are not paid in respect of this leave.

Payments for public holidays are made in accordance with the provisions of both the Organisation of Working Time Act and the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 (S.I. No. 475 of 1997).  Pay for public holidays is defined by section 5 of the Regulations and excludes pay for overtime.  Based on the statutory provisions the claim for the inclusion of overtime in public holiday pay is statute barred.

The respondent cites the determination of the Labour Court in case MCM Security Limited v Power DWT0895 in support of its position.

The respondent asserts that the complainant works 39 basic hours per week and is paid overtime for hours worked about this.

Public holidays entitlement is not guaranteed as a social right under the Working Time Directive or in the Charter of Fundamental Rights.  Therefore, the national provisions govern how public holiday entitlement should be calculated.  S.I. 475 of 1997 excludes pay for overtime from the calculation of pay for public holidays.  To include overtime pay in the calculation of pay for public holidays is not consistent with national statutory provisions.

CA-00042496-001

Complaint submitted under Section 27 of the Paternity Leave and Benefit Act, 2016.

It is agreed by the parties that the complainant availed himself of two weeks’ paternity leave between 17 and 30 August 2020.  The complainant confirmed that he received payment of paternity benefit from the Department of Social Protection for the two weeks’ leave.  The complainant also received a top-up payment from the respondent of basic pay for the two weeks’.  The issue to be decided is whether the complainant received the benefits he was entitled to receive under the legislation or was there a breach of the legislation. 

The relevant circular dealing with paternity leave is Circular LG(P) 09/2016, New Parent Leave in the Local Authority Sector.  The circular was published to update paternity leave arrangements in compliance with the Paternity Leave and Benefit Act, 2016.  The circular states “New parent leave shall comprise a single continuous period of 2 weeks’ leave with pay.”  In the section dealing with payment while on New Parent Leave it states, “Subject to paragraphs 19 and 20 below, a person on New Parent leave is entitled to normal pay.”  There is no definition of pay or normal pay contained in the circular.

The complainant was paid for 86.5 hours at his basic hourly rate and was not paid any overtime, allowances or premium payments, all of which he claims form part of his normal pay.  He asserts that failure to include allowances and premium payments is a breach of the legislation.  

The respondent asserts that it provided the complainant with continuous leave of two weeks’, in accordance with the Act and he received his paternity benefit payment in accordance with the Act.  In addition, he received a top-up payment from the respondent to total his normal pay for the period of paternity leave.

Legislation

The Act provides for leave and payment of benefits as follows:

Entitlement to paternity leave

6. (1) Subject to this Part, an employee who is a relevant parent in relation to a child shall be entitled to 2 weeks’ leave from his or her employment, to be known (and referred to in this Act) as “paternity leave”, to enable him or her to provide, or assist in the provision of, care to the child or to provide support to the qualifying adopteror mother of the child, as the case may be, or both

Entitlement to and duration of benefit

61B. (1) Subject to this Act, a relevant parent shall be entitled to paternity benefit in respect of a period during which the relevant parent provides care in relation to a child where—

(a) in the case of an employed contributor, it is certified by the employer of the relevant parent that he or she is entitled to paternity leave under the Act of 2016,

The Act does not provide for a top-up payment to an employee taking paternity leave.  At section 4(2) the Act provides:

(3) Nothing in this Act shall be construed as prohibiting the inclusion in an agreement of a provision more favourable to an employee than any provision in Part 2.

The complainant received two weeks’ continuous paternity leave and his paternity benefit from the Department of Social Protection.  I am satisfied he received all the benefits he was entitled to under the terms of the Act. 

The Act does not prohibit an employer and employee entering into an agreement that provides more favourable benefits for employees availing themselves of paternity leave.  In this case there is an agreement in place which provides for an employee availing themselves of new parent leave to be paid normal pay.  This is a benefit in addition to what is provided for in the Act. 

The respondent, following the hearing, confirmed that there was no copy available of a signed agreement between the parties relating to paternity leave.   However, a document provided at Appendix 3 of their submission was stated to be a summary of historical agreements and current practices and paternity pay had been applied consistently, as set out in that document, since 2005.  The document contains the following statement: “Force Majeure Leave, Compassionate Leave and Paternity Leave is paid at basic rate only, i.e. hour 40 to 42 premium, night duty premium and Sunday premium not paid in respect of this leave.”  This agreement or practice is outside the scope of the Act and any changes to that agreement are a matter for negotiation between the parties.  I am satisfied that the top-up payment made to the complainant was outside the scope of the Act and is paid in addition to the benefits provided for in the Act.  I find the complainant received the benefits he was entitled to under the Act and there was no breach of the legislation.

CA-00044557-001

Complaint submitted under Section 27 of the Organisation of Working Time Act, 1997

The complainant asserts that the payment made to him in respect of public holidays, when he is rostered off, is not calculated correctly as it is not based on one-fifth of his normal pay. 

The complainant submits that his normal pay includes payment for 42 hours worked, pay at a higher rate for hours 40, 41 and 42 per week, plus premium payments for Sunday and Night duty and allowances for Saturday and Night Meals. 

The respondent asserts that the complainant works 39 hours per week and hours worked above that are overtime hours paid at 1.25 and 1.5 times basic.  Further, payment for public holidays is not guaranteed as a social right under the Working Time Directive or in the Charter of Fundamental Rights.  Therefore, the national provisions, as contained in S.I. 475 of 1997 govern how pay for public holiday entitlement should be calculated.  Pay for overtime is excluded from the calculation under the regulations.

Legislation

The Organisation of Working Time Act, 1997 provides the following in respect of public holidays:

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.

22.— (1) The rate—

(a) at which an employee is paid in respect of a day off under section 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.

The relevant regulations are contained in S.I. 475/1997, which provides the following concerning the Appropriate Daily Rate of Pay:

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.

Regulation 5 outlines how to determine the relevant rate for employees: -

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) …(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) …

It is clear from the wording of Regulation 5 that any pay for overtime is not reckonable in the calculation of pay for public holidays.  The complainant submits that his normal weekly hours are 42 hours while the respondent submits that hours 40, 41 and 42 are overtime hours.  Hours 40, 41 and 41 are paid at the rate of 1.25 and 1.5, above the basic rate paid for 39 hours worked per week.

I have looked to the contract of employment to try to establish what the contracted hours of work are.  The contract itself is of no assistance as paragraph 6, dealing with hours of work, states: “You may be required to attend essential training as decided by the Chief Fire Officer outside of normal rostered hours.  All hours worked will be subject to and recorded in accordance with the provisions of the Organisation of Working Time Act, 1997 and the Organisation of Working Time (Regulations) 2001.  You will be required to operate the City & County Council’s attendance management system.”

I was provided with a document headed Pay Arrangements, Appendix 3 of the respondent’s submission.  Following the hearing the respondent, by e-mail, confirmed this document summarises historical agreements and current practices.  The following statement is contained in that document: “Average working week is 42 hours over 8 week cycle @ basic, hour 40 additional payment @ .25 basic rate, hour 41 & 42 additional payment @ .5 basic rate for each hour.”  Based on this and on the evidence in the pay slips provided to me, I am satisfied that the complainant works regular rostered overtime each week in addition to the basic 39 hours.

Regulation 5(2) is clear that any pay for overtime is excluded from the calculation of the one-fifth of the sum paid in respect of the normal weekly hours when an employee does not work on a day that is a public holiday.  I am satisfied that the calculation of the relevant rate by the respondent, excluding regular rostered overtime, is correct.

The complainant asserts that regular allowances should be included in the calculation of the one-fifth of the sum paid to him when he does not work on a day that is a public holiday.  The complainant provided me with copies of payslips from 2020, 2021 and 2022.  I have reviewed the payslips and I note that in each fortnight the complainant received payment of the same amount in respect of a Sunday premium (€283.06 (2020), €288.72 (2021) and €291.68 (2022)) and a Night premium (€247.68 (2020), €252.64 (2021) and €255.22 (2022)).  Payments for working on Saturday varied as did the payment of a Night Meal Allowance.

Regulation 5(2) (a) provides:

“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 of 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 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.

In my opinion, by agreement between the employer and the employees, payment of a premium for Sunday and Night work is calculated over the year and thus the same allowance is paid to the employee each fortnight.  The allowance for work on Saturday and the Night Meal allowance are only paid when the hours or nights are worked and therefore those payments vary from fortnight to fortnight.  I am satisfied that the premium paid for Sunday and Night work comes within the definition of a regular allowance, the amount of which does not vary in relation to the work done by the employee, as contained in Regulation 5(2)(a) and therefore should be included in the calculation of one-fifth of the sum paid in respect of the public holiday when the complainant is rostered off.

I find the claim for the inclusion of overtime pay in the calculation of the relevant rate when the complainant does not work on a day which is a public holiday is not well founded.

I find the claim for the inclusion of Sunday and Night premium payments in the calculation of the relevant rate when the complainant does not work on a day which is a public holiday is well founded. 

I find the claim for the inclusion of the Saturday and the Night Meal allowance in the relevant rate when the complainant does not work on a day which is a public holiday is not well founded.

In respect of the Sunday and Night premium payment the claim can only relate to the six month period prior to the complaint being received by the Workplace Relations Commission.  The complaint was received on 10 June 2021.  The cognisable period is 11 December 2020 to 10 June 2021.  In that period there were seven public holidays.  The complainant did not provided information about which public holidays he worked or was rostered off for in that period.  However, in the submission he estimates that he is rostered off on half of the public holidays per year.  

The complainant cited the following cases in support of the claim, King v The Sash Window Workshop Ltd Case C-214/36 and Chief Constable of PSNI v Agnew (2019) NICA32.  The cases are not relevant to this complaint as the entitlement to compensation for public holidays arises from the national provision in the Act and the Regulations in S.I, 475/1997 and not from a European Directive or Charter.  The legislation applicable in Northern Ireland is different and the decision cited has no application in this jurisdiction.

I find the respondent was in breach of the Act and Regulations by not including the regular Sunday and Night premium allowances in the calculation of relevant rate when the complainant did not work on a day which is a public holiday.  Having regard to all the circumstances I am satisfied it is just and equitable to require the respondent to pay to the complainant compensation if the amount of €1,000.00 for the breach of the Act and the Regulations.

CA-00042496-001

Complaint submitted under Section 27 of the Paternity Leave and Benefit Act, 2016.

The complainant received two weeks’ continuous paternity leave and his paternity benefit from the Department of Social Protection.  I find that he received all the benefits he was entitled to under the terms of the Act. 

I am satisfied that the top-up payment made to the complainant was outside the scope of the Act and was paid in addition to the benefits provided for in the Act.  I find the complainant received the benefits he was entitled to under the Act.  I find that there was no breach of the legislation. 

CA-00044557-001

Complaint submitted under Section 27 of the Organisation of Working Time Act, 1997

I find the claim for the inclusion of overtime pay in the calculation of the relevant rate when the complainant does not work on a day which is a public holiday is not well founded.  I am satisfied that the calculation of the relevant rate by the respondent, excluding regular rostered overtime, is correct.

I am satisfied that the premium paid for Sunday and Night work comes within the definition of a regular allowance, the amount of which does not vary in relation to the work done by the employee, as contained in Regulation 5(2)(a) and therefore should be included in the calculation of the relevant rate to be paid in respect of the public holiday, when the complainant is rostered off.   I find the claim for the inclusion of Sunday and Night premium payments in the calculation of the relevant rate when the complainant does not work on a day which is a public holiday is well founded. 

I find the claim for the inclusion of the Saturday and the Night Meal allowance in the relevant rate when the complainant does not work on a day which is a public holiday is not well founded.

I find the respondent was in breach of the Act and Regulations by not including the regular Sunday and Night premium allowances in the calculation of the relevant rate when the complainant does not work on a day which is a public holiday.  Having regard to all the circumstances I am satisfied it is just and equitable to require the respondent to pay to the complainant compensation if the amount of €1,000.00 for the breach of the Act and the Regulations.

I direct the respondent to comply with the Act and to comply with the method of calculation contained in Regulation 5(2)(a) of S.I. 475/1997 entitled Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997 by the inclusion of the Sunday and Night premium allowances in the calculation of the relevant rate when the complainant does not work on a day which is a public holiday.

Pay for paternity leave

Pay for New Parent leave

Public Holiday pay

Calculation of public holiday pay

Overtime and public holiday pay

Allowances and public holiday pay