Complainant

Respondent

Parties

Karol  Galuba

ISM Recruitment

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-Represented

  Internal Representative

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-00049313-001

24/03/2022

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.

At the first hearing, there was no dispute as to the evidence given by either party and the evidence was heard without recourse to the oath or affirmation.  At the hearing there had been some difficulty accessing documentation, its contents were agreed between the parties, and it was agreed to submit a further copy of the documentation. The documentation cast the evidence in a different light and the hearing was reconvened and testimony at that hearing was given under affirmation.  The apparent discrepancies were explained away after clarification was given under affirmation.

The complainant and the two witnesses for the respondent took the affirmation prior to giving their evidence on the second day of hearing.

The complainant submitted that the began work on 14 March 2022.  On 24 March 2022 he submitted a complaint concerning the non-payment of wages in respect of two public holidays, 17 & 18 March 2022.  The complainant submitted that he finished work with the respondent on 3 May 2022.

The complainant clarified under affirmation that although he was previously employed by the respondent, he started work on this occasion on 14 March 2022.

The complainant is seeking payment in respect of the two public holidays.

The respondent submitted that the complainant was not entitled to payment in respect of public holidays under the Organisation of Working Time Act because he was employed for three days before the public holiday rather than the period of 5 weeks prior outlined in the Act.

The witness for the respondent clarified under affirmation that the complainant was previously an employee but finished up working for them in August 2017.  It was further clarified that on this occasion, the complainant began working for them on 14 March 2022 and ceased employment on 3 May 2022.

The respondent submitted that the complaint was not a whole time employee.

The respondent submitted that the complainant was paid for all the public holiday entitlements to which he was eligible.

The respondent submitted that the complainant was not entitled to be paid for the public holidays that fell on 17 and 18 March 2022 because he was only employed for the three days prior to those dates.

Section 21 of the Organisation of Working Time Act, 1977 states as follows:

(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.

Having regard to the written and oral testimony of both parties, I am satisfied that Section 21(4) of the Act applies in the circumstances of this case.  Having regard to the written and oral testimony of the complainant I am satisfied that he has not established that he is a whole-time employee and accordingly, I find that this complaint is not well founded.

Having regard to all of the written and oral submissions made in respect of this complaint, my decision is that this complaint is not well founded.

Organisation of Working Time Act – payment for public holidays – Section 21(4) – not a whole time employee – complaint not well founded.