FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES: WATERFORD CITY AND COUNTY COUNCIL (REPRESENTED BY LGMA) - AND - MR ROSS SKELLY (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00033571 CA-00044411-001 DETERMINATION: Mr. Skelly, ‘the Complainant’, is a Firefighter employed by Waterford City and County Council, ‘the Respondent’. On 31 May 2021, the Complainant lodged a complaint under the Organisation of Working Time Act 1997, ‘the Act’, with the Workplace Relations Commission regarding the calculation of his pay on public holidays by the Respondent. An Adjudication Officer, ‘AO’, decided that the complaint was not well founded. The Complainant appealed the Decision to this Court. Summary of Complainant Arguments The Complainant works an average of 42 hours per week on an 8 day shift cycle. He is paid fortnightly. His wages are 78 hours at basic rate, 3 hours per week at time and a half, plus Sunday premium, night premium and a Saturday premium, which is paid only when worked, and a night duty meal allowance. The Complainant works on average half of public holidays. On those public holidays that he is due to rest, he receives only basic pay, leaving a shortfall of €148.01 each time he is not working on a public holiday. Regulation 3 of S.I. 475 of 1997 defines ‘normal’ rate of pay to be calculated for annual leave and public holidays, as follows; (2) 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. (3) If the employee concerned's pay is not calculated wholly by reference to any of the matters referred to in paragraph (2) of this Regulation, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum that is equal to the average weekly pay (excluding any pay for overtime) of the employee calculated over—
(1) If the employee concerned works or is normally required to work during any part of the day which is a public holiday, then—
(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—
The Complainant does not receive ‘normal’ pay when he is off work on a public holiday. He receives basic pay only. As this Court noted in DWT1550, the purpose of the provisions of the S. I. is to ensure that either during annual leave or public holidays an employee receives the money that they would have received if working on the relevant days. In DWT9917, the Court applied Regulation 5. The Complainant’s pay is calculated by reference to Regulation 3(2) above as the rate does not vary in relation to work done. Therefore regulation 5(1) is applicable. When he works a public holiday, his pay includes the premium for hours 40,41 and 42 above the standard 39 hour week, (he is paid for these hours every week), the Sunday allowance, night shift allowance and other allowances, Saturday and meal allowances, based on the hours worked by him the previous week. It is evident from the pay-slip that hours 40,41 and 42 are ‘basic’ hours and not ‘regular rostered overtime’. This Court applied the principle that an employee should not suffer loss in income on public holidays in DWT1673 and DWT1579. The High Court inJohn Smith v Hidden Hearing Ltd., ELR 2005,upheld this Court’s Determination that commission paid monthly must be included in the calculation of annual leave and public holiday pay. As a result of the Respondent’s actions, the Complainant has lost €10,656.72 since 2005. The Court’s Determination inStablefield Limited v. Ana Lacramioara Manciu,in which case €20,000 was awarded to the Complainant, demonstrates the willingness of the Court to award significant compensation when there is a conscious breach of an employee’s rights. The Court is asked to make good the losses and to award substantial compensation for the deliberate breach of the Complainant’s rights. Summary of Respondent Arguments The cognisable period in the within complaint is 1 December 2020 to 31 May 2021, in accordance with s. 41(6) of the Workplace Relations Act, 2015. The agreement with the relevant union, states that hours worked on public holidays are paid at double time and ‘Staff rostered off are paid 8 hours at basic rate in lieu of public holiday’. The Complainant’s average working week is 42 hours over an 8 week cycle. He is paid 39 hours at standard rate, hour 40 at 1.25 standard rate and hours 41 and 42 at 1.5 standard rate. Hours worked beyond the normal 39 hours per week are paid at overtime rates. Rates for Sunday are averaged over the 8 week cycle and Saturday work attracts a flat payment, when worked. The Act excludes overtime payments from the calculation of pay for public holidays. Regulation 5 of S.I. 475/1997 makes clear that public holiday pay, ‘..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 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’ or, alternatively ’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 a 13 week period. Based on this, there is no legal entitlement for overtime to be included in public holiday pay. This Court in DWT0895 accepted that normal pay was for 39 hours and that the overtime element was not reckonable for public holiday pay. The Complainant does not regularly work Saturdays and the allowance is paid only when these are worked. Likewise, the night premium and night meal allowance are paid only when worked. The Complainant only works half of the Sundays in an 8 week period. This cannot be considered a regular weekly allowance. This position was accepted by this Court in a duplicate of the current case, i.e.Waterford City and County Council v. Lyle Smith DWT237.The Court also came to the conclusion that a case for including overtime and other allowances had not been made out in duplicate, identical cases DWT232 and DWT2232. The Court issued a similar finding in a case involving another local authority in DWT2229. The Court is asked to find similarly in this case. The applicable law Organisation of Working Time Act, 1997. Entitlement in respect of public holidays. 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 ifparagraph (a)were omitted therefrom. Public holidays: supplemental provisions. 22.—(1) The rate— (a) at which an employee is paid in respect of a day off undersection 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. S.I. 475/1997 3.(1) The normal weekly rate of an employee's pay, for the purposes of sections 20 and 23 of the the Act (hereafter in this Regulation referred to as the "relevant sections"), shall be determined in accordance with the following provisions of this Regulation. employees (other than certain categories of job sharer)
(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—
It is clear to the Court that S.I. 475/1997 expressly precludes any pay for overtime from the calculation of ‘an additional day’s pay’ in determining payment for a public holiday. In MCM Security Limited v. Tom Power DWT0895, the Court noted; ‘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 either annual leave and public holidays’. In the instant case, the union argued that the payments for hours 40, 41 and 42 were basic wages and noted that they are so described on the Complainant’s pay-slips. However, it is accepted that these hours are paid at premium rates and, as a result, by definition they cannot be regarded as basic wages however clumsily they may be described on the pay-slips. The accepted reality is that the Complainant is paid basic wages for 39 hours per week. He actually works an average of 42 hours per week and he is paid premium rates for the three hours overtime that he works on average on a constant basis. The simple fact of the matter is that the relevant law, as set out in the S.I., does not support an argument for the inclusion of overtime, even when worked constantly, in the calculation of public holiday pay, so the complaint in respect of this aspect is not well founded. Regulation 5(2) prescribes that bonuses or allowances that do not vary shall be included in the calculation of public holiday pay. There is no question that Saturday payments, night premium payments and night meal allowances vary and are paid only on occasions when worked. They are, therefore, excluded from the calculation of public holiday pay in accordance with the terms of the S.I. The union argued that every pay-slip received by the Complainant shows payment of the Sunday allowance and that this did not vary. However, the shift cycle is organised so that the Complainant works four out of every eight Sundays. He does not work every Sunday. The fact that each fortnightly pay-slip shows a Sunday payment proves nothing and is hardly a surprise as, on average, the Complainant works one out of two Sundays. In any event, payment is dependant upon the Complainant actually working the relevant Sundays and, as such, it is subject to possible variation. It is, therefore, a payment that is variable, subject to work done and, consequently, is precluded by Regulation 5(2) from inclusion in the calculation of public holiday pay. This case is the fourth such case taken by the union on identical facts. The Court has found already in DWT2232, DWT232 and DWT237 that the law does not support arguments for inclusion of overtime and the relevant allowances in the calculation of public holiday pay. No different fact or new argument has been put to the Court to lead it to the conclusion that this case is well founded or that there is any basis to distinguish it from previous Determinations. The case for the appeal has not been made out and the appeal must fail. Determination The Decision of the Adjudication Officer is upheld.
NOTE Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |
