Complainant

Respondent

Parties

Frank  Nyhan

Securitas Security Services Ireland Ltd.  

Representatives

  Self-represented

IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00047183-001

15/11/2021

The Complainant worked as a security guard for the Respondent company between April 12th, 2021, and October 7th, 2021.

This claim was filed on November 15th, 2021.

This case was taken under the Payment of Wages Act 1991 and pertains to a dispute in relation to payment for public holidays and annual leave.

The definition of ‘wages’ under the s.1(a) of Payment of Wages Act 1991 in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a)    any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise (emphasis added)

The Complainant worked for the Respondent company, as a security guard from April 12th, 2021, to October 7th, 2021. This case relates to payment for public holidays and annual leave. The complaint form was filed on November 15th, 2021.

The Complainant submits that he was not properly paid for three public holidays (the first Monday in May, the first Monday in June and the first Monday in August) in 2021 and is seeking the outstanding monies in relation to same. He was rostered off for the May public holiday and the August public holiday and rostered to work for the June public holiday.

The Complainant also raised a query in relation to how his annual leave was calculated – specifically, the Complainant thought that his annual leave should be calculated based on hours paid rather than hours worked, i.e., he submitted that he thought previously taken annual leave should be included when calculating the hours upon which future payment for annual leave is calculated. The Complainant also queried that his annual leave was calculated based on his base rate of pay but did not include, in the calculation, the site premium of €1 per hour which he received when he worked on a particular site - he submits that he spent most of his time working for the Respondent assigned to one of two of the Respondent’s sites which attracted a site premium. The Complainant acknowledges that it is set out in his contract that his annual leave is to be calculated based on his standard rate of pay only, but the Complainant was querying the correctness of this position.

The Complainant represented himself and gave evidence on his own behalf. He outlined that there were three site locations and that two of the three locations attracted a premium of €1 per hour. He said that he started out working in the location with no premium and shortly thereafter was moved to a location attracting the premium.

He outlined that on the public holiday in May 2021, he was notrostered to work, that he worked on the June public holiday and that on the August public holiday, he was not rostered to work.

He outlined that his average working week was 48 hours, comprising four twelve-hour shifts per week.

He outlined that he believed he should have been paid either ‘a normal day’s pay’ or a fifth (1/5) of his average working week based on the average of the previous thirteen (13) weeks prior to that (as outlined in the Organisation of Working Time Act 1997), depending on which calculation was to be applied.

In his documentary submissions, he submits that in respect of the June public holiday, that one fifth (1/5) of his average working week, based on the average of the previous 13 weeks, would equate to 9.6 hours. He submits that in respect of the August public holiday, that one fifth (1/5) of his average working week based on the average of the previous thirteen (13) weeks, would equate to 9.3 hours. He outlined that these hours included breaks, for which he was paid.

He explained that his shift on the June public holiday overlapped two days – it was a twelve (12) hour shift which started on the Monday, and he received double pay only for the 4.5 hours prior to midnight. He received his basic pay for the remaining 7.5 hours of his shift. He stated that it made no sense that if an employee is rostered to work, they get less pay that a person who is rostered off.

On cross-examination

It was put to the Complainant that the May public holiday claim is out of time and outside the cognisable period.

The Respondent’s representative raised case-law with the Complainant in this regard: He raised the Labour Court determination DWT0338, Cementation Skanska (Formerly Kvaerner Cementation) V. Carroll with the Complainant and put to him that there is ‘settled case-law requires’, in order for the Complainant to be able to avail of an extension to the cognisable time-period, the Complainant had to show ‘reasonable cause’ for the delay and to show that ‘that there are reasons which both explain the delay and afford an excuse for the delay.’  

It was put to the Complainant that he made no effort to raise the issue until September. The Complainant rejected this. He stated that ‘LB [his line manager] ignored the issue I was getting at’ which he outlined as being that he thought getting paid double time for 4.5 hours seemed strange when ‘someone who was rostered off gets paid 8 hours’; in other words, ‘someone rostered on [to work] gets less money.’ He stated that he first raised the issue regarding public holidays with LB by email in September 2021.

The Complainant outlined how he contacted Head of HR (MC) on October 27th, 2021, in respect of annual leave and public holiday payments. He outlined that his query in relation to public holidays was ignored. His query in relation to annual leave was referred to his line manager (LB). He stated that he followed up on November 4th,2021. He stated that his phone call was not answered. The Complainant stated that it is only now, at the hearing, that he was receiving information about the August public holiday for the first time; and that there was no information/answer in relation to the June public holiday.

The Representative for the Respondent quoted the Labour Court determination UDD1624, Galway and Roscommon ETB v. Josephine Kennedy, wherein the Labour Court stated: “The Court cannot accept that a miscalculation of the due date amounts to ‘exceptional circumstances’ as defined by Section 44(4) of the Workplace Relations Act 2015.” and “While ignorance on the part of an employee of his or her statutory rights may explain a delay in submitting his or her appeal under the act it cannot excuse a delay.” The Court therefore held that it had no jurisdiction to hear the appeal.

The reasons outlined in the Complainant’s complaint form for the delay in filing his complaint are as follows: ‘Part of the reason I didn’t make this complaint until now is due to having been exceptionally busy since finishing with Securitas, and as well as having been incorrectly informed elsewhere that I could not make a complaint within the first year of employment. I also wanted to wait until my last payslip was received and to give HR a chance to respond to my notification email.’

The Adjudication Officer, at the hearing, asked the Complainant for any final comments before drawing the hearing to a close: He said that he thought ‘the August bank holiday should be paid; June should be paid too; I think there are errors in on top of that.’ He stated that there was a great deal of ‘battle and inconvenience’ in order to get ‘a minor amount of remuneration’ and that it had been a ‘battle’ to get the Respondent company ‘to correct errors’ and get paid. The Complainant raised a query in relation to the Respondent’s representative’s assertion that the claim for the May public holiday was out of time and, addressing the Adjudication Officer at the hearing, re-iterated that he thought that the Respondent company should have to pay that too.

Mindful that the Complainant was unrepresented, the Adjudication Officer clarified for the Complainant that her jurisdiction came from the legislation, that the cognisable period is a six month period (‘within six months’), with the possibility of an additional extension of six months but that there is relevant case-law in relation to the granting of an extension; that the Adjudication Officer had heard what both the Complainant and the Respondent’s representative had to say in respect of the possible granting of an extension; and that when the Adjudication Officer came to make her decision, she would carefully consider what he had said and what the Respondent’s representative had said, and the relevant case-law.

The Complainant also raised a query in relation to annual leave paid to him, and whether any was outstanding. He queried the basis of the calculation and whether it was correct. He queried whether annual leave days/hours he had previously received should form part of the calculation in relation to calculating annual leave days/hours due and owing to him (8% of hours under the Organisation of Working Time Act). The payment the Complainant received for annual leave did not include the site premium he received while working at one of the Respondent’s sites, and the Complainant was querying the correctness of this.

The Respondent was represented and ran a technical defence, proffering no witnesses.

Annual Leave

In respect of the query raised by the Complainant with respect to annual leave, the Respondent submits that the Organisation of Working Time Act 1997 specifically sets out that annual leave is calculated based on ‘hours worked’ rather than ‘hours paid’, and that the basis upon which the Complainant’s annual leave was to be calculated also set out in the Complainant’s contract. The Respondent submits that all monies due and owing have been paid, as per both the relevant legislation and the Complainant’s contract of employment. The Respondent asserted that it thought the claim with respect to annual leave was based on a misconception, by the Complainant. It is the Respondent’s position that annual leave (8% under the Organisation of Working Time Act 1997) is calculated based on hours worked, not on hours paid. The Respondent submits that the fact the site premium does not form part of the calculation for annual leave is specifically set out in paragraph 6 the Complainant’s contract of employment.

The Complainant’s rate of pay was in line with the ‘currently applicable ERO.’ The contract of employment states, at paragraph 2, that ‘It is a condition of your employment that you agree to work at any of the Company’s contract assignments of sites within reasonable travelling distance from  your home’, and at paragraph 6: ‘Site Premium rates are agreed by the customer on an individual basis and are strictly site specific.’  Annual Leave is addressed at paragraph 14 wherein it states that: ‘The value of holiday entitlement will be calculated at the basic hourly rate applicable to your normal place of work.’

It is the Respondent’s submission that the Payment of Wages Act 1991 relates to monies ‘properly payable.’ The Respondent submits that, with respect to annual leave, no monies ‘properly payable’ to the Complainant were outstanding. The Respondent submits that the Complainant’s claim with respect to annual leave is without merit.

PUBLIC HOLIDAYS

May public holiday

In relation to the claim for the three public holidays, the Respondent submits that the May public holiday falls outside the cognisable period in the legislation and submits that no ‘reasonable cause’ has been cited by the Complainant, in order for any extension in time to be granted under the legislation. In this regard, the Respondent cited the Labour Court Determination DWT0338, Cementation Skanska (Formerly Kvaerner Cementation) v Carroll, wherein the test, regarding the extension of time, was set out in the following terms: “It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time.’ The Respondent also cited the Labour Court determination UDD1624 Galway and Roscommon ETB v. Josephine Kennedy and the recent Labour Court Determination DWT2231, Compass Group V. Mr. Juris Akmentins, wherein it is set out that ignorance of the law is not an excuse and is insufficient in order to obtain an extension in time to the relevant cognisable period.

June public holiday

The Respondent’s written submission was silent as to the June public holiday. At the hearing, in response to a query from the Adjudication Officer, the Respondent submits that some monies may be outstanding to the Complainant, in respect of the June public holiday.

August public holiday

The Respondent, in its written submission, submits that the Respondent owes the Complainant for 1.5 hours in respect of the August public holiday and that this was a ‘minor miscalculation.’ At the hearing, in response to a query from the Adjudication Officer, the Respondent clarified that it thought payment for 8 hours was outstanding to the Complainant, in respect of the August public holiday.

Annual Leave

The Complainant’s contract sets out that his annual leave entitlement is to be calculated in lined with the Organisation of Working Time Act, 1997.

The Organisation of Working Time Act 1997 clearly sets out that annual leave is calculated in respect of hours worked and not hours paid.

s. 19(1) of the Organisation of Working Time Act 1997 sets out minimum statutory paid annual leave entitlement, as follows: “…an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to:

(a) four working weeks in a leave year in which he or she works at least 1365 hours (unless it is a leave year in which he or she changes employment)

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours or

(c) 8 percent of the hours worked in a leave year (but subject to a maximum of four working weeks)

The Complainant’s annual leave was calculated in line with s. 19(1)(c) of the Organisation of Working Time Act 1997 and the terms of his contract, i.e. 8% of hours worked, which I find to be correct, and I find that no monies outstanding are owed to the Complainant, in that respect.

In relation to the site premium, I am guided by the determination of the Labour Court DWT2232 Waterford City & County Council V. Michael Malone, wherein the Court addressed its mind to whether or not certain allowances were reckonable for the purpose of calculating an employee’s entitlement with respect to paid annual leave, having regard to Regulation 5 of S.I. 475 of 1997. The Court states that:

‘This Court has addressed the issue of the non-inclusion of overtime in the calculation of public holiday pay having regard to Regulation 5 of SI 475 of 1997. See, for example, the Court’s Determination in MCM Security Limited v Tom Power DWT0895 where the Court stated: “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 Complainant is in receipt of four allowances which he submits ought to be reckonable for the purposes of calculating payment for public holidays: a night duty meal allowance of €3.30 per night, Night duty allowance €141.36, Sunday premium allowance €161.56 and Saturday premium allowance €2.33. In the Court’s judgment, none of these allowances are comprehended by Regulation 3(2). The night duty meal allowance compensates for a cost incurred. The other allowances vary in so far as they are only payable when the Complainant actually works the particular shift.’

I find that the site premium is not reckonable when calculating an employee’s entitlement with respect to paid annual leave, as it is only payable to the employee when he works a particular shift at a particular site. I therefore find that no monies outstanding are owed to the Complainant in that respect either.

I find that no outstanding monies ‘properly payable’ are owed to the Complainant in respect of annual leave.

Public Holidays and cognisable period

This complaint was filed on November 15th, 2021. The relevant cognisable period is May 16th, 2021, to November 15th, 2021. The Complainant has applied for an extension to the cognisable period.

Having considered the submissions from both parties and directing my mind to the relevant case-law (inter alia, DWT0338, Cementation Skanska (Formerly Kvaerner Cementation) v Carroll), I find that the reasons proffered by the Complainant – busyness, waiting until receiving his last payslip, giving HR a chance to respond and being misadvised - do not meet the threshold required in order to extend the cognisable period from six (6) months to twelve (12). Therefore, I find that the relevant cognisable period does not include the May public holiday.

S. 21(1) of the Organisation of Working Time Act 1997 sets out that: ‘Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever 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

For completeness, the payslips submitted for the three pay periods (10, 13 and 17) and also in the email from the Complainant’s line manager (LB) to the Complainant on September 24th, 2021, indicate that the Complainant was paid 8 hours for the May public holiday for which he was rostered off, 4.5 hours double time for the hours he worked on the June public holiday and that he was paid 8 hours for the August public holiday for which he was rostered off. The first pay period (and related pay slip – pay period 10) falls outside the cognisable period.

In relation to the June public holiday, I find that the Complainant was not correctly paid. His contract sets out that a person who works a public holiday gets ‘double time’ for the hours worked, but in line with the provisions of the Organisation of Working Time Act 1997, I find that the correct reference period should relate to ‘a normal day’s pay’, as he was rostered on. The Complainant was paid for 4.5 additional hours (‘double-time’ – as he worked 4.5 hours before midnight on a public holiday) for the June public holiday. The Complainant has submitted that 9.6 hours represents ‘a normal day’s pay.’ That was uncontested by the Respondent.

In relation to the August public holiday, again, I find that the correct reference period is ‘1/5 of his average working week’, as he was rostered off. The Complainant was paid for 8 hours, as he was rostered off, for the August public holiday. The Complainant submitted that he should have been paid for 9.3 hours, (based on a calculation of 1/5 of his average working week, calculated with reference to the previous thirteen (13) weeks) in respect of the August public holiday. I find that that is correct. There is a shortfall of payment with respect to the August public holiday in the amount of 1.3 hours.

This claim (CA-00047183-001) was taken under the Payment of Wages Act 1991.

In respect of annual leave, I find that no monies ‘properly payable’ are outstanding, for the reasons outlined above. Specifically, payment for annual leave is calculated based on ‘hours worked’ not on ‘hours paid’ as per the Organisation of Working Time Act 1997. I further find that the site premium is not reckonable for the purposes of calculation when determining an employee’s entitlement with respect to paid annual leave.

In respect of public holidays:

1.       I find that the claim with respect to the May public holiday (2021) is ‘out of time’ as the claim was filed more than six months from the date of the alleged contravention, and ‘reasonable cause’ to extend the time limit, in accordance with the legislation and relevant case-law was not shown. Therefore, no monies are outstanding with respect to same.

2.       I find that with respect to the June public holiday (2021) there is a shortfall in pay, and there are monies outstanding in the amount of an additional day’s pay less the additional monies already paid (bearing in mind that this case was taken under the Payment of Wages Act 1991) which I calculate to be: €11.65 x 5.1 hours (9.6 hours minus 4.5 additional hours already paid) which amounts to €59.42.

3.       I find that with respect to the August public holiday (2021) there is a shortfall in pay, and there are monies outstanding in the amount of 1.3 hours, based on 1/5 of the Complainant’s average working week, calculated with reference to the previous thirteen (13) weeks, which I calculate to be €11.65 x 1.6 (9.3 hours minus 8 hours already paid) which amounts to €15.15.

I find that this claim (CA-00047183-001) is well-founded and I therefore direct the Respondent to pay the Complainant the amount of €74.57 in total (€59.42 + €15.15) within 42 days of the date of this decision.

Payment of Wages; Public holidays; Annual Leave; Premium; Reckonable; Cognisable period; Extension to Cognisable Period; No reasonable cause;