Complainant

Respondent

Parties

Michael  Malone

Waterford City and County Council

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 Organisation of Working Time Act, 1997

CA-00044412-001

31/05/2021

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

CA-00044706-001

21/06/2021

The complainant commenced employment as a full-time fire fighter in September 2000.  He is now a Sub-Station Officer.  He submitted complaints under Section 27 of the Organisation of Working Time Act on 31 May and 21 June 2021.  On his complaint form he states that he works 42 hours per week and his gross pay per fortnight is €2505.60.  He claims that the payments he receives for public holidays are not calculated correctly.

The respondent asserts that the complainant received the correct public holiday entitlement provided for under the legislation.

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, 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 06.00) 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 night duty meal allowance.

He calculates his normal pay per fortnight to be €2930.06 and pay per week over 4 days to be €1465.03, the value of a day being equal to €366.00, giving an hourly rate of €34.88.  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 €215.41.  He claims there is a shortfall in his pay of €150.84 each time he is off on a public holiday.  The shortfall arises as the respondent does not take account of him working a 42 hour week or the regular allowances that are included in his normal pay per fortnight.

The complainant claims the incorrect calculation has occurred since he was first employed in 2000 and he claims his annual loss is in the region of €678.81.  He estimates his loss over the whole period of his employment to be €14,255.00.

The union, on behalf of the complainant, cited the following 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.       Determine that cannot be accepted.

3.       Award appropriate compensation in addition to the nominal losses incurred.

Preliminary Points

The complainant submitted two identical claims on 31 May and 21 June 2021.  The respondent, citing, Section41. 6 of the Workplace Relations Act, 2015 asserts that the cognisable period in relation to the complaint submitted on 31 May 2021 is 30 November 2020 to 31 May 2021 and in relation to the complaint submitted on 21 June 2021 is 22 December 2020 to 21 June 2021.

If the complainant seeks to rely on a Northern Ireland case Chief Constable of the PSNI v Agnew (2019) NICA 32 (17 June 2019) the respondent submits that the basis of this decision is not relevant in this jurisdiction.  Whilst English cases are persuasive in Irish cases they do not constitute precedent.  Decisions of the Northern Ireland Court of Appeal are not binding in England, Wales or Scotland.  This Northern Ireland case is under appeal to the UK Supreme Court.

In Ireland the statutory provisions of the Workplace Relations Act, 2015, only allow claims covering a period of 6 months prior to the date the claim is submitted.  The respondent cited Labour Court decision Murphy and Son Haulage v Grant DWT2010 as acknowledging the cognisable period contained in the Act.

Background

The complainant was employed as a retained firefighter from 17 September 2000 to 02 April 2005.  He was appointed a full-time firefighter on 03 April 2005 and was appointed a full-time Sub-Station Officer on 16 October 2019.

Since 31 October 2005 full-time personnel operate a 4 shift system consisting of 4 Watches; White, Green, Red and Blue.  The shift system worked is designed to provide continuous cover throughout the year, including nights, weekends and public holidays.  The 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 is from 09.00 to 18.00 and the night shift from 18.00 to 06.00.

The 4 shift system agreement states the following in relation to pay for public holidays: “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”.

As part of the 4 shift system agreement it was agreed that the average working week is 42 hours over an 8 week cycle.  This provides 39 hours at basic rate, hour 40 at a rate of 1.25 and hours 41 and 42 at a rate of 1.5 for each hour.  The agreement also includes Sunday premium, an average of 21 hours worked between 00.01 and 24.00 over an 8 week cycle, an average of 11.25 hours per week at 2 time basic rate.  A flat rate for Saturday, when worked, of €9.95.  Force Majeure Leave, Compassionate Leave and Paternity leave is paid at basic rate only i.e. hour 40 and 41/42 premium, night duty premium and Sunday premium not paid in respect of this leave.

The respondent asserts that in the cognisable period the complainant did not work on 3 public holidays, 25 December 2020, 17 March 2021 and 03 May 2021.  The other public holidays in the cognisable period were worked by the complainant and he was paid for the actual hours worked on those occasions.

Respondent’s Position

The Organisation of Working Time Act, 1997 Section 21 (1) applies to wholetime employees “provided that if the day on which the public holiday falls is a day on which the employee would…” normally work.  S.I. 475/1997 provides guidance for the appropriate daily rate of pay for public holidays in relation to those employees who do not work on the public holiday.  Article 5 (2) of the Regulations excludes any pay for overtime.

According to S.I. 475/1997, where the complainant is receiving an additional day’s pay as his public holiday entitlement, the complainant should receive 1/5th of his normal working week for a public holiday where it is not being worked.  That is what is provided by the respondent to the complainant on those occasions.  The Act is clear that this does not include overtime.

The respondent cited the Labour Court decision in MCM Security Limited v Power DWT0895 in support of this submission.

The respondent asserted that public holiday entitlement is not guaranteed as a social right under the Working Time Directive or the Charter of Fundamental Rights.  Therefore, the national provisions as contained in S.I. 475/1997 govern how public holidays entitlement should be calculated.

The respondent asserts that premiums for Sunday, Nights, and Saturday and the Night Meal Allowance should not be included in the calculation of pay for public holidays.  Sunday and Night premium is paid for Sunday and Night working and is not a regular payment for normal daily hours worked.  Saturday premium is related to actual hours worked.  Night Meal Allowance is only paid when the complainant works a night.

The complainant received his public holiday entitlement provided for under the legislation.  The respondent requests the complaint be dismissed as there is no case to answer.

CA-00044412-001 and CA-00044706-001

The complaints against the respondent allege a breach of the Act in relation to the calculation of public holiday entitlements.  The complainant asserts that his public holiday payments are not calculated correctly as they are not based on one-fifth of his “normal” pay.

The complaints are identical the only difference being the dates on which they were submitted to the Workplace Relations Commission.  The first was received on 31 May 2021 and the second was received on 21 June 2021.  Section 41.6 of the Workplace Relations Act, 2015 provides that an adjudication officer shall not entertain a complaint referred to him or her 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.  The dates on which the complaints were received by the Workplace Relations Commission are relevant in establishing the correct cognisable period. 

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 there from.

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:

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) not applicable(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) not applicable

It is clear from the wording that 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 as they are paid at the rate of 1.25 and 1.5.  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: “Attendance shall be as specified in Article (iv) Page 2, Requirements/ Particulars of Employment attached.” No document was attached.  However, I was provided with a document headed Pay Arrangements which states: “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.”  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 which is a public holiday.  I am satisfied that the calculation used 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 in respect of the normal weekly hours when he does not work on a day which is a public holiday.  The complainant provided me with pay slips for seven pay periods being, 21/05/2021, 04/06/2021, 18/06/2021, 02/07/2021, 16/07/2021, 30/07/2021 and 13/08/2021.  Having reviewed the pay slips I note that in each fortnight the complainant received payment of the same amount in respect of a Sunday premium (€161.56 per week) and a Night premium (€141.36 per week).  Payments for Saturday varied as did payment of a Night Meal Allowance. 

Regulation 5(2)(a) provides that the relevant rate in respect of a public holiday on which the employee does not work “shall be the sum 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 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 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 position in relation to Saturday and the Night Meal Allowance is that they are paid when the hours/nights are worked and therefore vary from week to week.  I am satisfied that the premium for Sunday and Night work does come within the definition of a regular allowance as contained in Regulation 5 (2) (a) and should be included in the calculation of one-fifth of the sum paid in respect of the normal weekly hours.

I find the claim for the inclusion of overtime in the calculation of payment due when the complainant does not work on a public holiday is not well founded. 

I find the claim for the inclusion of Sunday and Night premium payments in the calculation of payment due when the complainant does not work on a public holiday is well founded.  The claim for the inclusion of other allowances for Saturday and Night Meal Allowance is not well founded.

In respect of the Sunday and Night premium payments the claim can only relate to the six month period prior to the complaint being received by the Workplace Relations Commission.  The complainant submitted duplicate complaints in error.   I will use the later complaint to establish the cognisable period as that covers the public holidays between 22 December 2020 and 21 June 2021.  The respondent provided information on each public holiday in that period.  The complainant did not work on 25/12/2020, 17/03/2021 or 03/05/2021.  I calculate his loss in respect of those three public holidays as follows: Sunday 161.56/5 x 3 = 96.94 and Night 141.36/5 x 3 = 84.82 giving a total of €181.76.

The cases cited by the complainant, King v The Sash Window Workshop Ltd Case C-214/16, Chief Constable of PSNI v Agnew (2019) NICA 32, are not relevant to this complaint.   The entitlement to compensation for public holidays arises from the national provision in the Act and the regulations in S.I. 475/1997.

In the circumstances I find the respondent was in breach of the Act by not including the regular Sunday and Night allowances in the calculation of the one-fifth of normal weekly hours worked for the public holidays on 25/12/2020, 17/03/2021 and 03/05/2021 and I direct the respondent to pay the complainant the sum of €181.76 for his loss and I award €1,000.00 in compensation for the breach of the Act.

CA-00044412-001 and CA-00044706-001

As the complainant submitted duplicate complaints in error I have made my decision based on the later complaint, CA-00044706-001, as that includes all the public holidays between 22 December 2020 and 21 June 2021.  There is no disadvantage to either party in this as there was no public holiday between 30 November 2020 and 22 December 2020.

I find the claim for the inclusion of overtime in the calculation of payment due when the complainant does not work on a public holiday is not well founded. 

I find the claim for the inclusion of Sunday and Night premium payments in the calculation of payment due when the complainant does not work on a public holiday is well founded.  The claim for the inclusion of other allowances for Saturday and Night Meal Allowance is not well founded.

In the circumstances I find the respondent was in breach of the Act by not including the regular Sunday and Night allowances in the calculation of the one-fifth of normal weekly hours worked for the public holidays on 25/12/2020, 17/03/2021 and 03/05/2021 and I direct the respondent to pay the complainant the sum of €181.76 for his loss and I award €1,000.00 in compensation for the breach of the Act.

I direct the respondent to comply with the Act and to comply with method of calculation contained Section 5(2) of S.I. 475/1997 entitled Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997.

Public Holidays

Calculation of pay for public holidays