Complainant

Respondent

Parties

Louise  Mc Auley

ASL Airlines Ireland Limited

Representatives

Aleksandra Tiiliakainen

IBEC

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-00043428-001

07/04/2021

The Complainant commenced working for the Respondent on the 21 March 2016.  Her final salary was €38,824.74.  It was agreed between the parties that the Complainant's daily rate of pay was €213.00.

She worked a four-day on/four day off shift pattern (4 /4 shift).

Her complaint was in relation to public holidays outstanding for the time she worked with the Respondent (March 2016).

The Complainant lodged her complaint on 7 April 2021. She subsequently resigned from employment on the 10 June 2021.

She made preliminary application to extend the time limit to bring her complaint by six months to allow the cognisable period to cover 12 months.  She set out that she was waiting for confirmation in relation to her query from HR from December 2019. She explained it was difficult for her to be in the office due to her shift pattern. She submitted that she had reasonable cause to make her application.

The Complainant referred to her Contract of Employment.

Her contract set out that she was entitled to 23.5 shifts per annum annual leave.

It separately stated that she was entitled to the benefit of nine public holidays. Public holiday entitlement was granted in accordance with the provisions of the Organisation of Working Time Act.

The Complainant submitted that nowhere in her contract of employment did it set out that public holidays were included in the calculation of her annual leave entitlement.

The Complainant gave evidence that she did not benefit from a break during her 12-hour shift.  She disputed that her shift was an 11-hour day.   

She raised the question of her public holiday entitlements with the Respondent HR manager in December 2019. She received an email from the Respondents setting out how the 23.5 shifts per annum was calculated. This was the first time that she was advised that the annual leave calculation included her public holiday entitlement.

The Respondent disputed the claim and sought to adduce evidence to prove the Complainant had received her public holiday entitlement.

In January 2020 the Respondent received an email from the Complainant setting out that she was not happy with their explanation of her public holiday entitlement and that the matter should be referred to the WRC.  It submitted that an extension of time should not be conceded in this case and that there was no reasonable cause for the Complainant's failure to lodge her complaint within the prescribed period set out in the Workplace Relations Act 2015.

It argued that the cognisable period for the complaint was the 8 October 2020 to 7 April 2021.

The Respondent referred to the Company Handbook which it submitted was available on the Respondent's intranet. On page 53 it referred to shift working. It set out that the yearly annual leave entitlement is 23.5 shifts. A part-time employee's entitlement was calculated on a pro rata basis. The clause went on to confirm

“This entitlement includes Public Holidays (nine) in accordance with the Organisation of Working Time Act 1997”. 

The Respondent submitted a leave calculation rationale. It submitted that at the start of the employment an employee is entitled to 24 days of annual leave and nine public holidays, in total 33 days. However, those days are calculated at 7.8 working hours each. This equates to 257.4 hours. To ensure the employee receives the equivalent time working four days on and four days off, the entitlement of 257.4 hours is divided by 11-hour shift. This gives a total of 23.4 shifts.  The Respondent submitted that in recent years it rounded this up to 24 shifts.  It submitted that the Complainant's entitlement to public holidays was included in her overall 23.5 shifts of leave for the year.

The Respondents explained that during the calendar year 2020, the Complainant took seventeen shifts of annual leave, worked two public holidays, was not scheduled to work on six public holidays and took leave on one public holiday.  It further explained that during the calendar year 2021, the Complainant took five days of annual leave, worked two public holidays, took one public holiday as leave and did not work two public holidays.

2020

26 October: public holiday: worked

25 December: public holiday: she did not work

26 December: public holiday: she did not work

2021

1 January: public holiday: worked

17 March: public holiday: she did not work

5 April: public holiday: taken as leave

3 May: Public Holiday: she did not work

7 June: public holiday: worked

It submitted that the Complainant left employment on the 10 June 2021 and in her last payment she was also paid for 9.5 shifts of leave.

I have reviewed the evidence presented at the hearing and noted the respective position of the parties.  The Respondent submitted a detailed calculation as to how it made its calculations.

I have been furnished with the relevant extract from the Complainants contract of employment and the Respondents staff handbook.  There is a conflict between both documents. 

Complaints that an employer has contravened any provision of the Organisation of Working Time Act 1998 are required to be presented to the Workplace Relations Commission within six months of the alleged contravention. 

The power to extend this time-limit was fully considered by the Labour Court in Cementation Skanska v Carroll DWT 38/2003.

It has regularly been held that ignorance of one's legal rights cannot provide a justifiable excuse for a failure to bring a claim in time.

Having considered the evidence presented to me, I do not find that there is reasonable cause to extend the time limit to lodge the complaint with the Workplace Relations commission.

I find that the cognisable period for this claim is 8 October 2020 to 7 April 2021.

Section 21 and Section 22 of The Organisation of Working Time Act set out

21. Entitlement in respect of public holidays

(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 the Third 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.

22. Public holidays: supplemental provisions

(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.

(2) For the purposes of section 21, time off granted to an employee under that section or section 19 shall be regarded as time worked by the employee.

I am satisfied that the Complainant had a bona fide issue as to the calculation and payment of her public holiday entitlements.  She did not have in her possession the knowledge or documentation to make the calculation herself.  There was a conflict between her contract of employment and the staff handbook.  The Respondent has not explained same.  I find that the contra proferentum rule applies.  The contract of employment was personal to the Complainant and drafted for her specifically.  The contra proferentem rule states, broadly, that where there is doubt about the meaning of a contract, the words will be construed against the person who put them forward (in this case the Respondent).

Under Section 25 of the Act the onus of proving that Section 21 of the Act has been complied with in relation to an employee lies with the employer. I requested the Respondent to furnish a pay slip showing payment of the Complainant’s public holiday entitlement.  The documentation presented to me was one payslip dated 25 June 2021.  It referred to holidays of €1,418.60 which by my calculations amount to 6.66 days.  It was not clear as to what these holidays referred to. 

Based on the information submitted to me it was not possible to determine that the Section had been complied with in respect of the Complainant.

I find that the Respondent has failed to discharge the onus that is upon it and I find that the Complainant is entitled to be paid for six public holidays. 

This claim is well founded.  I award the Complainant €1,278.00.  This award is in respect of arrears of remuneration.

Public holiday entitlement entitlement.  Calculation of same.  Proof of payment.