Complainant

Respondent

Parties

Dermot  Flanagan

Dublin Bus

Representatives

National Bus and Rail Union

IBEC

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-00057680-001

13/07/2023

The Complainant is a bus driver who, as a result of two assaults he suffered while driving for the Respondent, was unable to continue to work as a bus driver so took on an alternative, lower paid role within the Respondent organisation.  The Complainant is seeking to be paid at the bus driver rate for the annual leave he accrued while working as bus driver but did not take until after he had assumed his new role.

The Respondent rejects this complaint.

The Complainant has been employed as a bus driver with Dublin Bus since 1998.

On 9 September 2022, the Complainant was assaulted at work for the second time within a short period. This was a particularly aggressive assault with the attacker diving in through the driver's window from the outside of the bus.

The Complainant was off work from 9 September 2022 on a combination of assault leave/occupational leave. The Complainant, in consultation with the Chief Medical Officer, decided not to return to bus driving but instead to take up one of the newly created roles inspecting buses for defects as they exit the depot in the morning. The new role is only a 30-hour contract as opposed to a bus driver’s contract of 39 hours.

The gross pay for the 30-hour contract is approximately €583.05 per week as opposed to the average weekly gross pay for a bus driver of €943.99.

The Complainant returned to work in his new role on 29 May 2023. He was on annual leave from 10 July to 15 August 2023. The Complainant submits that he was not paid at the correct rate when he was on annual leave.  While he was on annual leave, the Complainant was paid at the rate of pay for his new role.  The Complainant asserts that this was not correct and that, while he was on annual leave, he should have been paid at the bus driver’s rate as he was a bus driver at the time he accrued the annual leave.

The Complainant confirms that the granting of the leave entitlement is not in dispute.

The Law

Section 20(1)(c)(iii) of the Organisation of Working Time Act 1997, as amended, (the Act), prescribes that, where an employee is unable to avail of their annual leave entitlement due to illness, and has provided a medical certificate to that effect, any untaken annual leave can be carried over for up to 15 months after the end of the year it which it was earned.

Section 20(2)(b) of the Act states that "the pay in respect of an employee's annual leave shall (b) be at the normal weekly rate or, as the case may be, a rate which is proportionate to the normal weekly rate”.

The Respondent paid the Complainant’s annual leave at his new 30-hour rate, even though the annual leave in question had been earned whilst the Complainant was a bus driver on a higher rate of pay.  

Section 19(1)(a) of the Act states the following:

"(1)(a) For the purpose of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was

(a) At his or her place of work or at his or her employer's disposal, and

(b) Carrying out or performing the activities or duties or his or her work."

The Complainant submits that It is quite clear therefore, that if he was deemed to be carrying out bus driving duties from 9 September 2022 until 28 May 2023, any annual leave accrued during that period should have been paid at the bus driver’s rate which was the Complainant’s normal weekly rate at that time and not at the rate for the 30-hour contract role which he commenced upon his return to work.  The Complainant submits that the Respondent has breached the Act with respect to payment for his annual leave.

The Complainant further submits that the Respondent is in breach of section 5 of the Payment of Wages Act 1991, as amended, because an illegal deduction has been made.

Section 5 of the Payment of Wages Act provides that:

"(6) Where the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion. "

The Complainant submits that in this case, the deduction from his wages was not authorised by him and he was not made aware of it prior to the deduction.

Summary

The Complainant submits that the unforeseen underpayment, which amounted to approximately €661.20, had a negative impact on his ability to enjoy his annual leave.  The Complainant is, therefore, seeking compensation for the impact of the breach.  The Complainant is also seeking payment of the difference between the amount paid to him for his annual leave and the amount which he would have been paid if he had been paid at the bus driver rate.

Background

The Complainant commenced employment with Dublin Bus in March 1998 as a Bus Driver. He went on sick leave from 9 September until 29 May 2023.  During this time off he decided that he did not want to return to work as a Bus Driver. He returned to work on 29 May 2023 and took up the role of First Bus Check Operative. On 25 May 2023 the Complainant was issued a formal letter for his new role confirming the new agreed terms and conditions of employment, confirming that he would now be on a 30 hour a week contract at a weekly rate of €583.05.

Respondent’s Position

The Respondent disputes the Complainant’s contention that he did not receive the correct payment while on annual leave. The Complainant went on annual leave from 10 July 2023 until 15 August 2023.   The Respondent submits that the Complainant was paid for that leave at his normal weekly rate as per his contract and in accordance with the relevant legislation. 

The Respondent submits that it has complied fully with the Organisation of Working Time Act, 1997 as there is no provision in the working time legislation for an employee to be paid for annual leave at any rate other than the ‘normal weekly rate’ calculated in accordance with S.I. No. 475/1997 - Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997.

Claim under section 6 of the Payment of Wages Act, 1991

The Respondent rejects the Complainant’s assertion that, while on annual leave, he should have been paid at the rate he was on when he accrued the annual leave i.e., the Bus Driver rate. The Respondent contends that the Complainant was properly paid in accordance with the Payment of Wages Act 1991and that there have been no ‘non-payments’ or ‘deductions’ which would constitute a breach of that act. 

Conclusion

The Respondent disputes the claim in its entirety.  The Respondent contends that the Complainant is essentially looking to be paid at his previous higher rate of pay for leave which was taken after he had agreed to a contractual change in his terms and conditions of employment.  The Respondent submits that there is no statutory provision which entitles an employee to be paid for annual leave at a historic rate instead of his current rate.   The Respondent submits that the Complainant has been correctly paid, in line with the relevant legislation, for all periods of leave.

Subsection 20(2) of the Organisation of Working Time Act, 1997, as amended, (the Act) provides that:

“The pay in respect of an employee’s annual leave shall—

(a) be paid to the employee in advance of his or her taking the leave,

(b) be at the normal weekly rate …”

The ‘normal weekly rate’ is set out under S.I. No. 475/1997 - Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997, which provides that:

“The normal weekly rate of an employee's pay, for the purposes of sections 20 and 23 of the Act (hereafter in this Regulation referred to as the "relevant sections"), shall be determined in accordance with the following provisions of this Regulation. 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”.

I have the utmost sympathy for the Complainant who suffered two separate assaults while carrying out his duties as a driver for the Respondent.  The assaults had such a traumatic effect on the Complainant that he was unable to return to driving after the second assault and, as a result, had to take a lower paid role within the Respondent organisation.

It should be noted, however, that my investigation in this case does not cover the assaults to which the Complainant was subjected, nor does it cover the significant impact that the assaults had on his working life.  The sole issue to be decided by me in this case is whether the Respondent correctly applied the provisions of the Act when calculating the amount payable to the Complainant when he took annual leave in 2023.

I have set out the relevant provisions of the Act and the Regulations above.  Applying those provisions to this case, I find that the Respondent has correctly applied the terms of the Organisation of Working Time Act 1997, as determined by SI 475 of 1997, in relation to the payment of the Complainant while on annual leave from 10 July 2023 until 15 August 2023. Accordingly, I find that this complaint is not well founded.

Having given careful consideration to all the evidence adduced in this case, I declare that this complaint is not well founded.

Calculation of normal weekly rate for the purposes of annual leave