Complainant

Respondent

Parties

Gary  Byrne

Louth County Council

Representatives

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-00046234-001

13/09/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

No evidence was given (or taken under oath or affirmation) as both parties agreed the evidence and both sought an interpretation of the legislation in regard to the issue of leave and Public Holidays as outlined in their submissions.

The finalisation of this decision was delayed due to the impact of COVID 19.

The complainant is employed on a four-day week basis by the respondent and does not work on Wednesday.  Accordingly, the complainant was not rostered to work on Wednesday 17 March 2021, a Public Holiday.

The complainant submitted that under Section 21 of the Organisation of Working Time Act, 1997, he is entitled to a paid day in lieu of the Public Holiday.

The complainant submitted in response to the respondent submissions that under Section 6 of S.I. No. 475/1997 - Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997, he is entitled to a day off in lieu of the Public Holiday rather than one fifth of his working weekly rate.

The respondent submitted that as the complainant works four fifths of a working week, under of S.I. No. 475/1997 - Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997, he is entitled to four fifths of a day off for a public holiday.

The respondent submitted that the complainant works 29 hours 36 minutes per week and accordingly under the legislation and regulations he is entitled to one fifth of his weekly hours (5 hours 55 minutes) in lieu of a public holiday.

The respondent submitted that Section 21(1) of the Organisation of Working Time Act, 1997 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.

The respondent submitted that it has paid the complainant his correct entitlement in relation to the public holiday.

Section 21 of the Organisation of Working Time Act states that

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.

(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.

Section 5 of S.I. No. 475/1997 - Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997 states that

(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) 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.

(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) in any other case, the relevant rate in respect of that public holiday shall be the sum that is equal to one-fifth of the average weekly pay (excluding any pay for overtime) of the employee calculated over—

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

Or, if not 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:

Provided that the relevant rate to which the employee concerned shall be entitled under this paragraph in respect of a public holiday shall not exceed the relevant rate to which he or she would be entitled in respect of that holiday if subparagraph (a) or (b), as the case may be, of paragraph (1) of this Regulation were to apply to him or her.

Section 6 of S.I. No. 475/1997 - Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997 states that

If—

(a) the employee concerned does not work or is not normally required to work on a day which is a public holiday, and

(b) he or she is required to work half the time required to be worked by a wholetime employee of the employer, being an employee employed to do work that is identical or similar to that which the employee concerned is employed to do, and

(c) the pay of the employee concerned is calculated wholly by reference to any of the matters referred to in Regulation 3(2) of these Regulations,

then the relevant rate in respect of that public holiday shall be the sum that is equal to one-tenth 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) that is paid in respect of the last 2 weeks of normal working hours worked by the employee before that public holiday:

Provided that the relevant rate to which the employee concerned shall be entitled under this Regulation in respect of a public holiday shall not exceed a sum that is equal to one half of the relevant rate to which he or she would be entitled in respect of that holiday if Regulation 5(l)(a) of these Regulations were to apply to him or her.

The complainant only worked four days per week and was never rostered to work a Wednesday.  This was his established working pattern.  17 March 2021 fell upon a Wednesday and the complainant was not required to work on that day.  The parties were in agreement that the respondent paid the complainant one fifth of the weekly working hours that he regularly worked in respect of the public holiday on 17 March 2021.  This amount is also equal to the one tenth of the sum paid in the previous two weeks.

Section 21(4) indicates that the complainant is not entitled to a paid day off, in such circumstances Section 5 of the Statutory Instrument is applicable.  Section 5 1(b)(i) applies to the complainant and following the reasoning in Section 5 2(b)(i), the relevant rate in respect of a public holiday shall be the sum that is equal to one fifth of the average weekly pay of the complainant.  This amount is equal to the amount noted in Section 6 of the Statutory Instrument.

Having regard to the written evidence from both parties, my decision is that this complaint is not well founded.

Organisation of Working Time Act – Public Holiday rate of pay – complaint not well founded.