Complainant

Respondent

Parties

Ross  Skelly

Waterford City and County Council

Representatives

Ms. Ger Malone SIPTU

Mr. Keith Irvine LGMA

Act

Complaint 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-00044411-001

31/05/2021

The Complainant commenced employment with the Respondent on 4th April 2005. At all times his role was described as “firefighter”.

On 31st May 2021, the Complainant referred the present complaint to the Commission. Herein he alleged that his public leave entitlement had been calculated incorrectly. In particular, the Complainant submitted that the Respondent failed to include various premiums and allowances when calculating the daily rate for a public holiday. In answering the complaint, the Respondent submitted that the Complainant received the correct rate of pay in accordance with the Act.

A hearing in relation to this matter was convened for, and finalised on, 4th March 2022. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing. No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

Throughout his employment, the Complainant worked an average of 42 hours per week. The Complainant worked an average of four days a week. These four days would be comprised of two nine-hour shifts, followed by two fifteen-hour shifts, followed by four days off. When the various allowances and premiums are calculated, the Complainant receives a base rate of pay of €34.15 per hour. In circumstances whereby the Complainant works an average of 42 hours over four days, his average day is 10.5 hours in duration and should be paid at a rate of €358.64.

The Complainant receive a rate of eight hours basic pay for a public holiday, which equates to a shortfall of €149.42 per day. On foot of the same, the Complainant is underpaid by the sum of €149.42 each time he is not working on a public holiday.

By response, the Respondent submitted that the Complainant had received the correct payment for public holidays in accordance with the Act.

The Respondent submitted that the Complainant worker 39 hours per week, and that the remaining hours are paid at an overtime rate. In respect of public holidays, the Complainant receives a rate calculated in relation to his normal rate of pay, excluding overtime rates and allowances. The Respondent submits that the Complainant has fallen into error in including the same in his public holiday calculation. In this regard, the Respondent submitted that the Working Time Directive does not apply to public holidays payments that the same are calculated in accordance with the relevant national provisions.

Section 21(1) of the Organisation of Working Time Act provides that,

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”

Section 22(1) provides that,

“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 in this regard are set out in Statutory Instrument 475/1997, or the Organisation of Working Time (Determination of Pay For Holidays) Regulations, 1997. Regulation 3(2) of the same provides that,

“If the employee concerned's pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be 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) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.”

Regulation 5(1) provides that,

“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”.

The subject matter of the present complaint, albeit in respect of a different Complainant, was considered by the Labour Court in the matter of Michael Malone -v- Waterford City and County Council DWT 2232. Here, the Court held that,

“The Complainant is in receipt of four allowances which he submits ought to be reckonable for the purposes of calculating payment for public holidays: a night duty meal allowance of €3.30 per night, Night duty allowance €141.36, Sunday premium allowance €161.56 and Saturday premium allowance €2.33. In the Court’s judgment, none of these allowances are comprehended by Regulation 3(2). The night duty meal allowance compensates for a cost incurred. The other allowances vary in so far as they are only payable when the Complainant actually works the particular shift.”

On foot of the finding above, the Court held that the Complainant was paid the correct rate of pay in respect of public holidays and his complaint was found not to be well-founded.

In the matter of Lyle Smith -v- Waterford City and County Council ADJ-00033747, which again dealt with a similar factual matrix, the Adjudicator held that the matter had already been ruled by the Labour Court and consequently found that the matter was not well-founded.

Having regard to the foregoing, I find nothing in the particular facts of this matter that would distinguish the same from those listed above. As a consequence of the same, I find that the present matter is not well-founded.

I find that the complaint is not well-founded.

Public Holidays, Calculation, Over-time, Allowances