Complainant

Respondent

Parties

Lyle  Smith

Waterford City and County Council

Representatives

Ger Malone SIPTU

Keith Irvine 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-00044548-001

10/06/2021

The complaint is that the respondent has incorrectly calculated ‘normal pay’ for calculation of compensation in respect of payment for public holidays.

The complainant is a firefighter with the respondent who works varying hours.  He contends that the respondent has erred in calculating payment for public holidays in that the calculations applied by the respondent were not based on ‘normal pay’.  It is argued that Sections 21 and 22 of the Organisation of Working Time Act 1997 provide for entitlement in respect of public holidays.  It is submitted that the ‘normal’ weekly hours worked by the complainant calculated over a period of 13 weeks has been determined by the complainant’s union to be 42 hours per week and the respondent has failed to pay the complainant the correct rate for public holidays.  The matter was referred to WRC Conciliation and no progress was made resulting in the complainant’s union being advised to take the complaint under the Organisation of Working Time Act 1997.       The Union refers to statutory instrument S.I.475/1997 which outlines at regulation 3 ‘normal weekly pay’.  It is argued that the respondent has incorrectly calculated the normal pay having ignored the actual hours worked and the Sunday premia applied.  It is argued that there has been an ongoing breach of the Act, resulting in the complainant being at a loss of €9.027.42 per annum.  The complainant should be compensated up to the maximum allowed in the Act.

A number of preliminary issues were raised by the respondent:

The complaint was submitted to the WRC on 10th June 2021.  The Workplace Relations Act 2015 section 41(6) states:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section 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 respondent would assert that the cognisable period in relation to the complaint is from 11th December 2020 to 10th June 2021.  The respondent would also reference Labour Court Case DT2010  in a recent case where the Labour Court acknowledged and asserted the cognisable period contained in the Act.

The issue of payment for Public Holidays was discussed with the Union and they were informed that the Organisation of Working Time Act excludes overtime payments. (This was also the subject of a WRC Conciliation Hearing on 15th December 2020). No issues related to the inclusion or otherwise of allowances were ever raised by the Union prior to the referral of the matter to the WRC Adjudication Service.  To summarise, the claimant works 39 normal hours per week and hours worked beyond this are paid at overtime rates.

Section 21 of the Act relates to Public Holiday entitlement:

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 annualleave,(d) an additional day’s pay

Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 (S.I. No. 475 of 1997).  Public Holiday calculations are defined by section 5 of the Regulations ( 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) in any other case, the relevant rate in respect of that public holiday shall be the sum that is equal to the average Daily pay (excluding any pay for overtime) of the employee calculated over—

(i)                  the period of 13 weeks ending immediately before that public holiday, or

(ii)                if no time was worked by the employee during that period, the period of 13 weeks ending on the day on which time was last worked by the employee before that public holiday.

The Council having reviewed all payments made to the complainant are satisfied that all payments were 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). Based on the statutory provisions the claim for the inclusion of overtime in public holiday pay is statute barred.

This matter has previously been considered by the Labour Court in DWT0895 in which the Court advised “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 … public holidays. The Union accepts that the Claimant’s normal pay is made up of 39 hours pay at the standard rate … and six hours overtime pay ... It is clear that this overtime element is not reckonable in applying the formula prescribed by Regulation 3(2). It follows that the Claimant’s claim for the inclusion of this overtime in the calculation of the rate at which he is paid … cannot succeed in the present proceedings.” 

The Council assert that the claimant works 39 basic hours per week and is paid overtime for hours worked above this.

The Council believe that for the purposes of the regulations, which state that allowances payable for which the “amount of which does not vary in relation to the work done by the employee”, they do not include allowances paid in respect of an expense incurred and are not reliant on the type or amount of the work performed at for example, weekend or nights.

Public Holiday entitlement is not guaranteed as a social right under the Working Time Directive or in the Charter of Fundamental Rights. This means that national provisions govern how public holiday entitlement should be calculated. Those provisions state in regulations S.I. 475 of 1997: (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. Therefore, to make a declaration that Public Holiday Pay should include overtime is not consistent with national statutory provisions

In relation to the argument that other pay elements are regular weekly allowances and should also be included in Public Holiday Pay calculations, e.g. Saturday allowance, meal allowance, Sunday premium and night premium. The Council would assert that these are not regular weekly allowances and vary each week. 

The complaint in this case is almost identical to that contained in ADJ-00033597 which was the subject of an appeal to the Labour Court which ruled on the matter on 3rd August 2022.  In Determination No. DWT2232 in that case, the Court referred to the issue of non-inclusion of overtime in the calculation of public holiday pay and found that the allowances such as Sunday premium and Saturday premium and night duty allowances are not comprehended by Regulation 3(2).  The Court also found that Regulation 5 (1) (a) expressly and unambiguously excludes overtime from the calculation of “an additional day’s pay”.

Payment of an “additional day’s pay” in respect of public holidays.  Complaint not well founded.