DWT2329

Appeal of Adjudication Officer Decision No's: ADJ-00038192 (CA-00049584-002)

BACKGROUND:
An Adjudication Officer hearing took place on 13 September 2022 and a Decision was issued on 02 March 2023. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 06 March 2023 in accordance with section 28(8) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 28 November 2023. The following is the Decision of the Court.

DETERMINATION:

Background to the Appeal

This is an appeal by Mr Brian McEneaney (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00038192/CA-00049584-002, dated 2 March 2023) under the Organisation of Working Time Act 1997 (‘the Act’). The Adjudication Officer held that the Complainant’s claim for the inclusion of regular and rostered overtime and an eating-on-site allowance in the calculation of his public holiday payments, retrospective to the commencement of his employment, in 2001, with Kilkenny County Council (‘the Respondent’), was not well-founded. The Complainant’s Notice of Appeal was received in the Court on 6 March 2023. The Court heard the appeal in Waterford on 28 November 2023.

Summary Factual Background

The Complainant referred his initiating complaint under the Act to the Workplace Relations Commission on 8 April 2022. He has been employed by the Respondent since 2001, initially as a General Operative and, since 2003, as a Driver. He is paid €17.18 per hour. The Complainant is required to perform regular rostered overtime every second weekend on a rota basis with another Driver. The overtime consists of four hours worked on a Saturday and four hours worked on a Sunday. The Complainant also receives the following allowances: a washing allowance of €16.15 per day for washing his work vehicle; an early rising allowance of €7.24 per day and a tax-exempt Eating-on-Site allowance of €7.24 per day.

The Complainant’s Submission

It is submitted on behalf the Complainant that he should have received payment in respect of all public holidays that have fallen since the commencement of his employment at a rate based on his full or normal rate of pay (i.e. a rate that includes his regular and predictable overtime and all allowances). He is seeking full retrospective payment of the difference between what he has actually been paid for public holidays and what he submits he ought to have been paid, plus compensation for the Respondent’s failure in this regard. The complaint is predicated on a detailed analysis of CJEU jurisprudence in relation to the Working Time Directives.

The Respondent’s Submission

The Respondent submits that the within claim in relation to the calculation of pay for public holidays, as formulated by the Complainant, is misguided, as pay for public holidays is a matter entirely comprehended by national law and not a matter that is within the scope of the Working Time Directives. The Respondent further submits that the cognisable period for the claim is 9 October 2021 to 8 April 2022 and that the Complainant has been correctly remunerated in accordance with SI 475 of 1997 for all public holidays that fell in that period.

The Law

Regulation 5 of SI 475 of 1997 provides:

5. Relevant rate for employees (other than certain categories of job sharer)

—(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 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 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

(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.

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.

Discussion and Decision

This Court held in DWT0895 MCM Security Limited and Tom Power that it is clear from the wording of Regulation 3(2) and Regulation 5 of SI 475 of 1997 that pay in respect of overtime is not reckonable in the calculation of pay for public holidays. It is equally clear, however, that allowances (but not expenses) are reckonable. The Eating-on-Site ‘allowance’ paid to the Complainant is not an allowance in the nature of pay; it is a tax-exempt expense and cannot, therefore, be included in the calculation of pay for public holidays.

The Court is satisfied, having regard to section 41 of the Workplace Relations Act 2015 (and the fact that the matter of public holiday benefits is entirely a matter of domestic law), that the cognisable period for the within claim is 9 October 2021 to 8 April 2022.

The Court, therefore, having given careful consideration to the Parties’ submissions, finds that the within claim is not well-founded and the Complainant’s appeal fails as the Complainant has been correctly compensated for all public holidays that fell within the cognisable period. The decision of the Adjudication Officer is, therefore, upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
AR	______________________
06 December 2023	Deputy Chairman