Complainant

Respondent

Parties

Rhona  Matthews

Morbury Ltd. T/A Top Security

Representatives

  Self-represented

Hugh Hegarty Management Support Services (Ireland) Ltd

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-00049195-001

11/03/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00049195-002

27/06/2022

The first complaint (CA-00049195-001) was filed on 11/03/2022 and relates to payment for public holidays under the Organisation of Working Time Act 1997.

It is the Complainant’s case that she never received any additional payment (or any of the other options available under the legislation) in respect of public holidays. It is her case that there was no economic benefit to an employee unless they worked the public holiday in question.

The Respondent denies the claim and it is the Respondent’s case that a composite rate of pay was paid to employees, in line with their employment contracts, in respect of public holidays.

The Complainant filed a second complaint (CA-00049195-002) on 27/06/2022 with respect to annual leave. The Complainant’s employment ended on 12/10/2021. No reason was proffered for the delay in filing the second complaint, in circumstances where she had filed the first complaint on 11/03/2022, in respect of an employment which had already ended at the time of the filing of the first complaint. The second complaint was not properly before the Adjudication Officer having been filed outside the six-month time limit and without ‘reasonable cause’ and as such, the Adjudication Officer declined to hear it as, per the legislation, she had no jurisdiction ‘to entertain’ same.

For completeness, the Respondent denies the second claim also and asserts that the Complainant was fully paid all monies owed with respect to annual leave, specifically 8% of hours worked, in line with relevant legislative provision. Of its own motion, and outside the forum of this adjudication hearing, the Respondent undertook to clarify the query the Complainant had raised with respect to annual leave.

The Complainant, representing herself, gave evidence that she had worked as a static security guard, between 2017 and 2021 for the Respondent company.

She explained that she was a full-time employee and that she had a shift pattern that rotated, which determined how many shifts per week she worked in a particular week.

Her complaint related to public holidays. She said that she ‘never got paid’ for public holidays.

Mindful that the Complainant was unrepresented, and mindful of the approach taken by the Labour Court in Nolan Transport v Antanas DWT 1117 (quoted more recently in the WRC case of Sandra Blakeney V Verve Marketing Ltd. ADJ-00029223), the Adjudication Officer clarified at the hearing, for the Complainant, that she needed to particularise her complaint sufficiently so that the Respondent could respond to the complaint.

The Complainant clarified her complaint, giving evidence on her own behalf, that ‘you were paid if you worked’ at the ‘flat rate’, i.e. that ‘you got your standard wages’ but that ‘you got nothing extra for public holidays.’ She said that ‘the only way you would benefit from public holidays is if you worked them, and you got your standard rate of pay, nothing extra.’ She said that employees ‘didn’t get any of the options under the Act.’  She said that ‘if you were rostered to work, you got the standard rate’ and ‘if you were not rostered to work, you didn’t benefit in any way.’

She said that ‘for people not working that day, they were not given the option of it being added to your annual leave.’

The Adjudication Officer enquired at the hearing as to whether the Complainant had raised it with her employer, when the issue arose. The Complainant said that ‘yes’, she had. The Adjudication Officer enquired as to when the Complainant first raised it with the Respondent. The Complainant said that she had queried her payslip many times; that payroll was dealt with externally by a Dublin-based company; that the Cork office (of her employer) ‘couldn’t deal with a shortfall directly.’ She said her experience was that when she queried it with her manager in Cork, the response she received was that they ‘would get Dublin [external payroll company] to look into it’ and that she would then hear nothing more, after that.

On cross-examination, the Respondent’s representative put the Complainant’s contract to her which set out a composite rate of pay for public holidays. The Complainant re-iterated that in order to financially benefit from a public holiday, you had to work it.

The Adjudication Officer asked the Complainant for her final comments. The Complainant re-iterated that ‘the only way you would benefit from public holidays is if you worked them – you got your standard rate of pay, nothing extra.’ ‘If you were rostered to work, you got the rate; if you were not rostered to work, you didn’t benefit in any way.’ She also stated that she had never received a paid day’s annual leave in respect of a public holiday (either on the day, or subsequently), which are other options under the Act.

The Complainant sought to raise an issue re: Sectoral Employment Orders (SEOs) but it did not appear anywhere in the complaint form and so, was not properly before the Adjudication Officer, at the hearing. The Adjudication Officer therefore declined to hear evidence as she had no jurisdiction in relation to it.

The Complainant also sought to raise an issue in respect of annual leave (CA-00049195-002) filed on 27/06/2022. The Respondent was not on notice of it prior to the hearing, as it had been filed subsequently. The Adjudication Officer heard from both sides in respect of it and determined that she had no jurisdiction to hear the complaint. It was filed outside the six-month time-limit and no reasonable cause was proffered as to the delay, in circumstances where the Complainant had previously filed a complaint re: public holiday remuneration in respect of this employment, which had already concluded at the time she filed the first complaint.

In attendance for the Respondent was:

1.       External representative Hugh Hegarty

2.       Joe Doyle, internal Consultant, for the Respondent company

The Respondent company asserted, through its representative that there was no shortfall, that a composite rate of pay, which was set out in the Complainant’s contract was paid.

The Respondent asserted that the Complainant had worked for the Respondent company part-time from 2017 and then full-time from 13/02/2019 until the end of her employment on 12/10/2021. It was the Respondent’s assertion that under s. 16(C) of the Complainant’s contract, public holidays were paid as part of the hourly wage paid, at a rate of 36 cents per hour, i.e. a composite rate.

The Complainant’s complaint (CA-00049195-001) was submitted on 11/03/2022.

The Respondent quoted the relevant section of the Organisation of Working Time Act 1997, in respect of public holidays and it was the Respondent’s submission that the composite rate of pay complies with the rate of pay requirements for public holidays, under the legislation.

The Respondent tendered no witnesses. It ran a technical defence, through its representative which was that no monies were outstanding, and that the Complainant had been paid a composite rate of pay for public holidays, in line with her contract.

The Respondent asserted that the initial rate was €11.66 per hour which included a composite rate €0.36 per hour, in respect of public holiday pay; and that when the sectoral rate increased, that was reflected in a pay rate increase. In the Respondent’s written submissions, it asserted that the Complainant’s rate of pay was €12 per hour.

The Adjudication Officer, at the hearing, requested a payslip from the Respondent, which demonstrated what had been asserted and allowed forty-eight (48) hours after the hearing for submission. The Adjudication Officer also allowed a further forty-eight (48) hours for the Complainant to comment on the payslip, in writing, if she wished to do so. The Respondent submitted the payslips. The Complainant did not produce any comments.

The Respondent, of its own motion, also undertook to clarify the issue with the Complainant which she had raised in respect of annual leave (which was not properly before this adjudication hearing).

The Adjudication Officer asked the Respondent for its final comments. The Respondent re-iterated that there had been no shortfall in relation to public holidays, that its policy was compliant with the Complainant’s contract and the Organisation of Working Time Act 1997, and that the Complainant had been paid correctly; and that in response to the Complainant’s assertion that she was not offered a day’s annual leave in respect of public holidays (as per one of the options under the OWTA), that the options set out in the legislation are ‘at the employer’s discretion.’

CA-00049195-001 – The Complaint was filed on 11/03/2022.

The Complainant’s employment ended on the 12/10/2021.

The Organisation of Working Time Act 1997 sets out the law in relation to time limits and jurisdiction:

s. 27(4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

s. 27(5) Notwithstanding subsection (4), a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not after than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.

I find that there is reasonable cause to extend the time limit, in respect of CA-00049195-001, as per s. 27(5) in the totality of the circumstances, as outlined by the Complainant, in her evidence in this case.

At the time, the list of (then) nine public holidays set out in the Organisation of Working Time Act 1997 was as follows:

·         New Year’s Day (1st January)

·         St. Patrick’s Day (17th March)

·         Easter Monday

·         The first Monday in May

·         The first Monday in June

·         The first Monday in August

·         The last Monday in October

·         Christmas Day (25th December)

·         St. Stephen’s Day (26th December)

The public holidays which fall within the relevant, possible, extended cognisable period (12/03/2021 – 11/03/2022) when the Complainant was also employed by the Respondent (12/03/2021 – 12/10/2021) are as follows:

·         St. Patrick’s Day – 17th March 2021

·         Easter Monday 2021 – 5th April 2021

·         The first Monday in May – 3rd May 2021

·         The first Monday in June – 7th June 2021

·         The first Monday in August – 2nd August 2021

Under s. 21 of the Organisation of Working Time Act 1997, employers have the discretion to decide which of the four options set out in the legislation to grant to an employee, in respect of a public holiday. Employees may receive any one of the following, in line with the legislation:

·         A paid day off on the public holiday

·         A paid day off within the month of the day of the public holiday

·         An additional day of annual leave

·         An additional day’s pay

Having carefully considered the legislation, I find that those are the only four lawful options open to an employer in order to be compliant with the requirements of the Organisation of Working Time Act 1997.

I find that there is a legal distinction to be made between the legislature’s approach to Sunday premium, which specifically allows for a composite rate to be paid and which was upheld in the High Court case of Trinity Leisure Holdings Limited T/A Trinity City Hotel v Sofia Kolesnik and Natalia Alfimova [2019] IEHC 654,and the legislature’s approach to public holidays which is silent in respect of a composite rate of pay.

In relation to Sunday Premium, s. 14(1) of the Organisation of Working Time Act 1997 provides that where an employee is required to work on a Sunday, and their having to work on that day is not otherwise taken into account in determining their pay, they shall be compensated by the following means and to such an extent as is reasonable having regard to all of the circumstances:

·         an allowance

·         an increase in the rate of pay

·         paid time off in lieu or

·         a combination of two or more of the above

By contrast, there is no such option available to an employer under the legislation with respect to public holidays. It is therefore reasonable to take the view that the legislation does not allow for that approach. Consequently, I find that the approach taken by the Respondent to the payment of public holidays falls outside what is allowable under the relevant legislation and is not lawful. I find that this is a very serious breach, by the Respondent. Further, from a purely practical standpoint, approaching the purported payment of public holidays in the manner in which the Respondent has done produces the effect of obscuring whether or not an employee has been paid their entitlements in line with the Organisation of Working Time Act 1997, especially in respect of any employee who has worked part of a year, and undermines clarity and thus, enforcement.

s.27(3) of the Organisation of Working Time Act 1997 provides:

A decision of an Adjudication Officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded

(b) require the employer to comply with the relevant provision

(c) require the employer to pay to the employee compensation of such amount (if any) as is

just and equitable having regard to all of the circumstances, but not exceeding 2 years’

remuneration in respect of the employee’s employment.

I have directed my mind to the facts of this case and have carefully considered what constitutes ‘just and equitable’ compensation within s. 27(3)(c) of the Organisation of Working Time Act 1997, in light of the facts adduced in this case.

CA-00049195-002 – The Adjudication Officer had no jurisdiction to hear this complaint.

CA-00049195-001 - I find that the Respondent’s approach to the payment of public holidays breaches the Organisation of Working Time Act 1997, as nowhere in the legislation permits the payment of public holidays as a composite rate, in contrast to the legislative provision for Sunday premium. I find that this is a very serious breach under the Act. I find that this complaint is well founded.

I direct the Respondent to review its contracts and payroll policy and to align them both with the requirements of the Organisation of Working Time Act 1997.

I also direct the Respondent to pay compensation of €600 to the Complainant, within 42 days of the date of this decision.

CA-00049195-002 – This complaint was received on 27/06/2022.  This complaint is not well founded.

Organisation of Working Time; Composite rate of pay; Public Holidays; Cognisable period;