Complainant

Respondent

Parties

Julian  Rixon

Department of Education and Skills

Representatives

Self-represented/Represented by his wife Mrs. Rixon

Tim O’Connor BL instructed by Chief State Solicitors Office (CSSO)

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00048322-001

23/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00048322-002

23/01/2022

The Complainant is a permanent part-time primary school teacher in a special school, contracted for 15 hours per week, whose rostered days for many years have been Tuesday, Wednesday and Thursday.

His claim pertains to the fact that during those years, he has never received the ‘benefit’ of some of the public holidays, those which fell on a Monday or a Friday when primary schools are in session during the school year.

Of the ten public holidays occurring per year, a per the Organisation of Working Time Act 1997, the public holidays which, it is submitted by the Complainant, are impacted (or potentially impacted depending on how they fall in a given year) by the approach the DES has taken in respect of a part-time worker rostered as the Complainant is (in particular, part-time teachers not rostered to work on Monday), are the following:

• First Monday in February, or 1 February if the date falls on a Friday.
• Saint Patrick's Day (March 17th)
• First Monday in May
• First Monday in June

and

• Last Monday in October – sometimes impacted but not generally, as it usually falls during mid-term break (Halloween).

The remaining five public holidays fall during periods of school closure:

• First Monday in August
• Christmas Day (25 December)
• Saint Stephen's Day (26 December)
• New Year's Day (1 January)
• Easter Monday

Every two weeks, the Complainant is paid 1/26 of his annual salary by the payroll department in the Department of Education and Skills (DES) throughout the year as determined by the relevant point on the applicable salary scale along with qualification allowances. Whether or not a public holiday has occurred during the relevant two-week period does not impact how much pay a teacher receives, i.e. teachers receive the same amount of pay in each of their twenty-six (26) paycheques throughout the school year, paid every fortnight.

A part-time teacher who is typically rostered to work on a Monday receives a day off on the public holiday as the school is closed, in a week containing a public holiday, and also receives his/her standard paycheque - 1/26 of annual salary every fortnight, unchanged. It is the Complainant’s case that teachers in this position receive the benefit of a public holiday in a week containing a public holiday which falls on a Monday in addition to their standard salary. The Complainant cites a teacher in his school, in this position, as a direct comparator (another part-time worker). He also cites full-time teachers in his school, who receive 1/26 of their annual salary every fortnight, unchanged but only work four days instead of five in a week containing a public holiday, as also receiving the ‘benefit’ of a public holiday.

By contrast, he asserts, that if – as has been his position for several years now - you are a part-time teacher who is not typically rostered to work on a Monday, the position is different for you: In a week containing a public holiday which falls on a Monday, you  are off on the Monday (as usual, and the school is closed) and you receive your standard 1/26 of salary every fortnight, unchanged – but, you work the same number of hours in the week containing a public holiday which you work in any other typical week throughout the school year. In other words, he submits you have not received the ‘benefit’ of the public holiday. He submits that you are at a disadvantage compared to other part-time teachers who typically work Mondays and as compared to full-time teachers, in this regard.

The Respondent, DES, denies the Complainant’s claims.

The Department of Education submits that it is the paymaster. It submits that the Complainant is contracted to work a certain number of hours per week (in this instance – 15 hours per week) during the primary school year and is paid 1/26 of his annual salary at the relevant point on the applicable salary scale every fortnight, on a pro-rata basis (as he is a part-time worker), on foot of that contract, by Department of Education payroll.

The Respondent further submits that rostering is a local matter, dealt with, on the ground, at school-level. It submits that it has formulated a policy for dealing with leave entitlements of teachers, which is set out in Circular Letter 0054/2019 and it submits that that policy is compliant with the Organisation of Working Time Act 1997. It denies that the variances between workers in the identified scenarios undermine the lawfulness or compliance of the policy.

The Complainant is a part-time permanent teacher in a special primary school, on a contract of indefinite duration (CID) since 2016. Prior to that, he worked in the same school on a fixed term contract.

The Complainant is currently ill, with a recognised medical condition. He was in a position to give evidence on his own behalf, and his wife assisted in the presentation of his case, at the hearing. The Adjudication Officer was guided in her approach by the (UK) Judicial College’s Equal Treatment Bench Book, in this regard. The Complainant is currently unable to work due to his illness.

The Complainant’s case pertains to public holidays, and especially public holidays which fall on a Monday during the period when primary schools are in session, in circumstances where since 2012, when his pattern of rostered days changed, he has worked Tuesday, Wednesday and Thursday each week, for a total of 15 contact teaching hours per week.

The Complainant’s case is that, in respect of those public holidays during the period when schools are in session, he has not received the benefit of a public holiday – neither paid time off nor a day in lieu, in respect of same for several years.

The Complainant’s wife, Mrs. Rixon, outlined that, in the Complainant’s school, there are resource teachers who work Monday and Friday and they got the “benefit” of the public holiday.

She explained that, in 2012, it was requested of her husband that he change his days, to accommodate another teacher who had a young family at the time, and the business needs of the school. She explained “now, we have a young family, but they can’t both get it.”

She also gave the example of a Physical Education (PE) teacher who works five days across five schools, and, therefore, also gets the “benefit” of the public holiday.

She explained that, by contrast, her husband, the Complainant is “the only one who doesn’t receive any benefit from public holidays.”

Mr. Rixon gave evidence on his own behalf at the hearing.

He outlined that “When I moved to Tuesday/Wednesday/Thursday, I worked alongside colleagues who would receive Monday and Friday bank holidays. I questioned with the school about days off in lieu. Three or four times.”

He said that “the school secretary queried this with the payroll department of the DES” and that “she was told “No.””

[Documentation was submitted, prior to the hearing, in respect of the Complainant’s queries to the Department of Education payroll section, in relation to the issues which form the subject matter of this case.]

He said that: “Through the time I’ve worked, colleagues have had a bank holiday off and I’ve worked a normal week during that week.”

He explained that previously, he had been on a fixed term contract, working two days per week, and he worked Mondays and Thursdays. He explained that in September 2012, he moved to a fixed term contract of three days per week; and he moved to a pattern of “Tuesdays, Wednesdays, Thursdays”, and that change was one he was requested to make to accommodate a colleague.

He stated that he received a contract of indefinite duration (CID) in 2016.

Cross – examination

On cross-examination, it was put to the Complainant that he worked 15 hours per week, as per his contract. He concurred.

He was asked about other colleagues working hours, and asked in terms of his breaks whether he got his “full breaks – mid-term, Easter, Christmas, summer, the same as other colleagues” He said: “Yes.”

It was put to him that he got the “full amount of those.” He confirmed: “Yes.”

It was put to him that he was “paid throughout the year.” Again, the Complainant agreed: “Yes.”

Final Comments (by Mrs. Rixon)

Mrs. Rixon outlined that her husband, the Complainant “works a lot of extra days, which he is not contracted to work - ceremonies, July provision (extra classes), volunteering.”

She said that he was “different in comparison with his colleagues”, as “he is not getting the benefit of a day off.”

She said that “this has been going on for eleven (11) years.”

She said that the Barrister for the Respondent “kept coming back to St. Patrick’s Day as it is the only [public holiday] that moves.”

She said that it would be “quite simple to account for” and that contrary to the DES’s submission “doesn’t require DES to get involved in the day-to-day rostering/management of a school.” She said that “it just requires a tick on a payroll software package – should this person benefit from the bank holiday? That’s all.” She explained that the DES does not have to get involved with rostering. It just has to ask: ‘Has this person qualified to benefit for the payroll benefit?’”

Respondent

In attendance for the Respondent were:

·        Mr. Tim O’Connor BL

·        Mr. John Brosnan, Solicitor, Chief State Solicitor’s Office (instructing)

·        Mr. Ray Murphy, Assistant Principal, Payroll section, Department of Education and Skills (DES)

·        Mr James Walsh, Principal Officer, Department of Education and Skills (DES)

As per the written submissions of the Respondent

Background:

The nature of the relationship between the school St Gabriel's Special School and the Department of Education.

The Board of Management of schools are the direct employers of the school staff and the Department of Education acts as a paymaster for most school staff in those schools. The Department will act on instruction from the schools and I can confirm that the Department is acting as paymaster in terms of Mr. Rixon's employment in St. Gabriel's Special School since 2009.

General information on employment in schools

There are a variety of teaching employment types within these schools such as permanent wholetime, permanent part time, fixed term contracts, contracts of indefinite duration and also casual substitution work. Casual substitution occurs where a person is a replacement for a teacher who is absent on leave from the school.

A school year commences on 1st September each year and will conclude on the following 31st August. Within that period, a teacher will have class contact time with pupils which involves either 182 days or 166 days depending on whether the school is in the primary or post primary school sector (Section 24 of the Education Act, 1998).

The salary is paid for the school year and inclusive of bank holidays and weekends i.e. 365 days.

Employment Record for Mr. Julian Rixon as a teacher

Table 1 below refers to Mr. Julian Rixon's employment record and provides details of the hours contracted to work each school year and the contract type.

Mr Rixon currently works as a permanent teacher employed by St. Gabriel's Special School in Bishopstown Cork. The school has advised the Department that his current contracted hours are 15 hours per week for this school year i.e. September 2022 to 31st  August 2023. Mr Rixon's salary is calculated by reference to the published Primary Teacher's Salary scale Circular 0064/2022 Teacher Salary Scales.

Mr. Rixon is currently paid on point 14 of the Primary Teacher's pay scale. For whole time teachers the salary for point 14 is €58,498 see page 4 of the Circular). Applying the pro rata equivalent for the 15 hours, Mr. Rixon is contracted by the school, the annual salary equates to €39,884.52 and this salary has been set up on the payroll system accordingly. The attached screen shot from the payroll system shows this (Appendix l).

Circular is 007/2023 — Building Momentum provides for a pay increase with effect from 1st March 2023 and will be implemented in Mr. Rixon's salary of 16th March 2023. In providing a response to Mr. Rixon's complaint, I am referencing the salary pay scale that applied from 1st October 2022 which is Circular number 0064/2022.

Table 1 — Employment History.

Annual leave entitlements

Statutory Annual Leave and Public Holiday entitlement for employees is regulated by the Organisation of Working Time Act, 1997 (as amended). Section 21 of the Organisation of Working Time Act, 1997 caters for an employee's entitlement to Public Holidays in the format, as determined by the employer. Employees who work less than full hours are entitled to Annual Leave on a pro-rata basis,

A whole-time teacher has a statutory annual leave entitlement of 20 days. Based on Mr. Rixon's employment, his statutory pro-rata entitlement to annual leave is 12 days. In common with all teachers, Mr. Rixon has the actual benefit of leave at midterm. Easter, summer etc. which is in excess of the statutory entitlement.

In line with legislation, the Department's Circular Letter 0054/2019 caters for a teacher's statutory Annual Leave and Public Holidays entitlement at Chapter 10, titled ‘Statutory Annual Leave/Public Holidays’. Under Circular 0054/2019, additional Annual Leave is given in lieu of Public Holidays which occur while a teacher is absent on leave e.g. Sick Leave, Maternity Leave etc. These Annual Leave entitlements are taken on existing school closure days that occur during the relevant leave year.

Timetable Rostering

The work pattern and the time tabling of teaching staff is a matter for the school. The scheduling of work within a week that the school is open for pupils is also a matter for the school.

Primary schools and special schools must be open for tuition for all pupils for a minimum of 182 school days, Annual leave entitlement must be taken during periods of school closures which are standardised in Circular 0072/20. The detail of school closures are set out in the Circular.

Payment for public holidays

A teacher working in a whole time capacity is paid salary for 365 days a year. A whole time teacher is accordingly paid for all public holidays. In the case of a teacher who works in less than a whole time capacity, salary is paid for 365 days reduced pro rata  as explained above. Mr. Rixon is being paid for public holidays on the same basis as a whole time teacher. Salary is adjusted to take into account that he is working 15 hours per week rather than the whole time equivalent.

Mr Rixon has the same leave entitlements as whole time teacher including where a school is closed to pupils on midterm breaks, Christmas, Easter and summer holidays. His holiday entitlements are not reduced due to working part time. Most recently he has benefited from the additional St. Bridget's Day bank holiday. The school year has been reduced from 183 days to 182 days accordingly without any impact on salary.

To provide evidence of where Mr. Rixon has not been disadvantaged by his part-time employment compared to his whole-time employment, Appendix 2 shows two payslips where payment covered a period where there was no public-holiday (Pay Issue 202310 – for period 14th February 2023 to 27th February 2023)

The payslip (Pay Issue 202308 for period 3 January 2023 to 13th February 2023) includes the 1st  February 2023 Bank Holiday

For completeness, Appendix 3 shows the latest payroll setup for Mr. Rixon following the latest pay increases to be applied under Building Momentum Pay Agreement.

As you will see from examining both payments, the gross payment received for 15 hours of work is exactly the same and as such Mr. Rixon is receiving the same entitlement to public holidays as a whole-time teacher.

The Department of Education respectfully submits that:

1.      Mr. Rixon has the same entitlement to public holidays as a whole time teacher. No teacher whether full time or part time is scheduled to work on public holidays.

2.      Mr. Rixon is correctly paid on a pro rata basis for the days worked on an equivalent basis as a whole time teacher.

3.      All rights and entitlements under the Payment of Wages Act, 1991 and Protection of Employees (Part Time Work) 2001 Act have been met.

·        Mr Rixon has been paid the amount due to him. He has not shown he has been paid less because he is a part time employee.

·        Mr. Rixon has not been treated less favourably than a comparable full time employee.

1st witness for the Respondent - Mr.  Ray Murphy, Assistant Principal in the Primary Payroll section in the Department of Education and Skills (DES)

Mr. Murphy outlined how teachers were set up on payroll, ensuring the correct pay and that they are paid every two weeks.

He spoke to points set out in the written submissions.

He outlined that, in the case of teachers, the employer is the school and the DES sets policy and handles payroll on behalf of the school - it is the paymaster.

He said that in the case of an employed teacher - or anybody else working in the school - the school is the employer (the school board, the principal).

He said that rostering was decided at local level.

He outlined that there were different types of employment - full time, part time contracted hours, that there were different varieties of contracted part-time employee and also substitute teachers.

He explained that the school year runs from September 1st to August 31st , that there are 182 contact days in school for a full-time primary school teacher. He said that it was a salaried position regardless of the breaks and that teachers were paid every two weeks throughout the year.

He explained that in the Complainant’s case, that he was on point 14 of the salary scale – each year you move up a point on the salary scale – and that he was working 15 hours per week. He explained that a full week is 22 hours. Therefore, the Complainant’s salary is 15/22 pro-rata, a pay multiplier 68%. (0.68) of a full year’s salary, pro-rata.

He addressed the issue of leave entitlements. He said that the Complainant was entitled to the same public holidays as any of his colleagues whether part-time or full-time, that the school is closed on public holidays, that no teacher is expected to work them whether part-time or full-time because the school is closed.

He outlined in respect of annual leave, that in accordance with the statutory basis for it, teachers are entitled to 20 days per year annual leave; and that the Complainant’s statutory entitlement is pro-rata-ed (12 days), as he is a part-time employee.

In respect of entitlement to a day in lieu (annual leave) for public holidays, he outlined that that is taken when the schools are closed.

He compared two payslips which had been submitted – one which pertained to a pay period in which a public holiday occurred and one which pertained to a non-public holiday pay period and outlined that they were the same – that pay is the same every two weeks throughout the year, that there is no difference in pay.

He said that the relevant Circular states that you get days in lieu, in respect of public holidays, and that you get that during the time when the school is closed. He said that there are adequate days to cover any statutory leave.

He said that in respect of full-time employees, apart from the pro rata occurring with respect to part-time employees, everything else is exactly the same, if comparing two employees.

Cross-examination: (by Mrs. Rixon on behalf of the Complainant, her husband)

She asked him whether the days that you are rostered effect your entitlement?

He said: “No. It’s the hours that you are contracted for, that you are paid for.”

She put it to him that in “any other industry”, if you had worked “40 hours in the previous 5 weeks”, you “would receive the benefit of the bank holiday.”

The witness said that “you are paid for the number of hours, not for the days that you attend. The school could decide for operational reasons that you are attending tomorrow, that different days are needed.”

Witness No. 2 for the Respondent - Mr. James Walsh, Principal Officer, Terms and Conditions Unit of the Department of Education and Skills (DES)

Mr. Walsh explained that his unit publishes entitlement circulars and sick leave circulars and deals with the terms and conditions of teachers. Counsel for the Respondent characterised the unit as “policy setters”, which was accepted.

He outlined that in respect of leave entitlements, teachers have a statutory entitlement to twenty days annual leave – in the Complainant’s case, 12 days on a pro-rata basis.

He said that Chapter 10 of Circular 0054/2019 was applicable, that additional annual leave is taken during existing school closure.

He explained that there is no difference between part time and full time, that the school is closed, that this is factored into the salary basis, that teachers get the additional days over the school closures. He said that there were no differences between part-time and whole-time, other than the pro-rata. He said that payment in lieu was the same, whether compared to part-time or full-time.

He concurred with the previous witness’ evidence and said that there was no change in the Complainant’s pay.

He explained that hours are based on the contract, rather than specific hours. He said that the rostering does not affect that. He said that you were still paid the same.

He was asked whether there was any public holiday that moves? He identified St. Patrick’s Day as being a public holiday that moves.

On cross-examination

Mrs. Rixon, on her husband’s behalf, put the same point to this witness in respect of the Complainant not getting the “benefit” of a public holiday.

She addressed the issue of St. Patrick’s Day and gave the example of it falling on a Saturday, resulting in the school being closed the following Monday and said that the Complainant does not work that day and therefore “doesn’t get any benefit at all.” She put it to the witness that there was “no parity.”

She said that he was “not rostered to work on a Monday or Friday” and was therefore “not the same as any other part-time employee.” She said that the art teacher, “a special resource teacher”, works Mondays and Fridays and also gets her full salary, that her salary remains unchanged but that she “receives two extra days off” compared to the Complainant. The witness re-iterated that the Complainant was “contracted to work 15 hours, that days off in lieu are taken throughout the period of school closures, that that has no impact on the payment or the number of hours he has to work.”

The Adjudication Officer at the hearing, enquired of the witness: “Is it the Department’s position that this policy is compliant with the Organisation of Working Time Act?” The witness said: “Yes.”

On re-direct

It was put to the witness that the point had been raised that this year the Complainant had no days off, that the most recent St. Patrick’s Day fell on a Friday. The Witness said that the Complainant was “paid the same way”, “got the same day off in lieu”, “got the same benefit.”

Final Comments

Tim O’Connor BL cited a Rights Commissioner Case (dated 30th March 2015) R136557-MP-13/JW which pertained to days off in lieu in respect of statutory leave built up while on protected (maternity) leave. He submitted that the period of school closures is more than adequate to deal with the statutory leave built up while on protected leave. The Adjudication Officer gave him an opportunity to submit a copy of the case subsequent to the hearing, which he did.

The Adjudication Officer, at the hearing, enquired as to whether the Respondent had a response or wished to comment in respect of the anomalies identified by the Complainant on foot of the Respondent’s policy, which it submits is compliant with the Organisation of Working Time Act 1997.

Counsel on behalf of the Respondent submitted that they were “perhaps, variances” rather than anomalies, that they were “necessary”, that “otherwise, it would require the Department to determine the benefit of [rostering] individual teachers”, that “the Department does not get involved in rostering, it only gets involved in payment based on contracted hours.” He said that “rostering is a question for the individual school and that will vary from school to school – due to their needs, individual circumstances etc.” He said: “Flexibility is required. It is necessary in order for the school to meet its needs, that it was necessary in order that the school can meet the needs of particular pupils on particular days”, “that it can best be dealt with.”

He said that “what seemed to being raised was not getting “the benefit of a day off.”” The Adjudication Officer, at the hearing, concurred, and asked him to address the point. He submitted that leave allowances for teachers are so large that it becomes subsumed into them, that there are “large breaks in teaching” [throughout the school year] and that “days off in lieu are swallowed by the overarching days off.”

He also submitted that St. Patrick’s Day was not the only date-specific holiday and that some of the other public holidays (e.g. around Christmas-time) were date specific too, but they occurred during school closures.

The Law

The applicable legislation in respect of entitlement in respect of public holidays is the Organisation of Working Time Act 1997, which at s. 21 sets out:

There are now ten (10) public holidays per year:

• New Year's Day (1 January)
• First Monday in February, or 1 February if the date falls on a Friday.
• Saint Patrick's Day (17 March)
• Easter Monday
• First Monday in May
• First Monday in June
• First Monday in August
• Last Monday in October
• Christmas Day (25 December)
• Saint Stephen's Day (26 December)

Due to the structure of the school year, and the blocks of time during which schools are closed, the arrangements in relation to five of the public holidays are not disputed by the Complainant:

• First Monday in August
• Christmas Day (25 December)
• Saint Stephen's Day (26 December)
• New Year's Day (1 January)
• Easter Monday

The public holidays which, it is submitted by the Complainant, are impacted (or potentially impacted depending on how they fall in a given year) by the approach the DES has taken in respect of a part-time worker rostered as the Complainant is (i.e. not rostered to work on Monday), are the following:

• First Monday in February, or 1 February if the date falls on a Friday.
• Saint Patrick's Day (March 17th)
• First Monday in May
• First Monday in June

and

• Last Monday in October – sometimes impacted but not generally, as it usually falls during mid-term break (Halloween).

In line with the Organisation of Working Time Act 1997, teachers are entitled to twenty days annual leave per year, and part-time teachers are entitled to a pro-rata of those twenty days in respect of annual leave. In line with the applicable circular 0054/2019 at Chapter 10, teachers are required to take that annual leave during school closure days.

Circular Letter 0054/2019 at Chapter 10 sets out, as follows:

CHAPTER 10 – STATUTORY ANNUAL LEAVE/PUBLIC HOLIDAYS

(Should be read in conjunction with the General Provisions for All Schemes, and Definitions)

1. Statutory Annual Leave/Public Holidays

1.1 Statutory Annual Leave and Public Holiday entitlement is regulated by the Organisation of Working Time Act, 1997 (as amended). In general, full-time employees are entitled to a minimum of 20 days Annual Leave in each leave year.

1.2 Employees who work less than full hours are entitled to Annual Leave on a pro-rata basis.

1.3 Under the Organisation of Working Time Act, 1997 (as amended), a teacher on a period of Career Break is entitled to Public Holidays arising in the first 13 weeks of the leave.

1.4 In relation to Carer’s Leave, under the Carer’s Leave Act 2001, a teacher is entitled to Annual Leave and Public Holidays arising in the first 13 weeks of the leave.

1.5 Additional Annual Leave will be given in lieu of Public Holidays which occur while the teacher is absent on any of the following leave types: a) Sick Leave b) Maternity Leave c) Adoptive Leave d) Parental Leave e) Career Break f) Job Sharing g) Carer’s Leave h) Paternity Leave i) Leave of Absence following Assault

1.6 Annual Leave entitlements should be taken on existing school closure days that occur during the relevant leave year. Where a teacher is availing/has availed of another type of leave at a time outside of school closures (e.g. Sick Leave/Maternity Leave), Annual Leave should be taken before or after the relevant leave type. 126 DES Circular 0054/2019

1.7 Where there are not enough school closure days in the leave year to absorb all Annual Leave entitlements, it is permitted to take the necessary days immediately:

a) prior to Maternity, Adoptive, Paternity and Parental Leave and

b) after Sick Leave and Leave of Absence following Assault Alternatively, teachers are permitted to carry the balance forward to the following leave year but must then take this leave during school closures.

1.8 A teacher who resigns/retires or whose employment ceases may be entitled to additional payment in lieu of their accrued Leave.

For completeness, the group of people to whom the circular applies is set out, as follows, at the top of the document:

“The Minister for Education and Skills, pursuant to the power contained in Section 24 of the Education Act (as amended), directs employers to implement the regulations and procedures, as stated, for eligible registered teachers employed in approved teaching posts funded by monies provided by the Oireachtas. These procedures apply to teachers who are in receipt of incremental salary under a permanent contract, contract of indefinite duration (CID), or fixed-term contract (e.g. temporary whole-time (TWT), regular part-time (RPT)) as defined in the Protection of Employees (Fixed-Term Work) Act 2003.”

Application to this case:

The Complainant is under a contract of indefinite duration (CID).

S. 21 of the Organisation of Working Time Act 1997 (OWTA) sets out an exhaustive list of four ways in which an employer can discharge its duty to an employee with respect to public holidays, and that the employee is entitled to whichever one of those four options “his or her employer determines.”

In this instance, the employer has determined that if the public holiday falls on a day the Complainant is typically rostered to work, the Complainant receives “a paid day off on the day” as per s. 21(1)(a) of the OWTA, as the school is closed and the Complainant receives his regular salary for the applicable pay period; and if the public holiday falls on a day the Complainant is typically not rostered to work, the Complainant receives “an additional day’s annual leave” as per s. 21(1)(c) of the OWTA.

In respect of the latter, Chapter 10 of Circular Letter 0054/2019, at 1.6 sets out that: “Annual Leave entitlements should be taken on existing school closure days that occur during the relevant leave year.” So, what happens, in practice, in respect of a public holiday which falls on a day that the Complainant is typically not rostered to work is that the Complainant receives an additional day of annual leave in line with s. 21(1)(c) of the OWTA and is required to take it during school closure days in the same school year, as per the Circular 0054/2019.

The number of school closure days far exceed the annual leave entitlement stemming from annual leave itself (a pro-rata number of days in the case of the Complainant as he is a part-time worker) and from public holidays in which the employer has determined to discharge its duty, with respect to same, by way of an additional day of annual leave, as per s. 21(1)(c) of the OWTA. So, it may have the appearance that the Complainant has not had the “benefit” of the public holiday, but that is not in fact the case.

Full-time workers V. Part-time workers

Full time teachers are the Complainant’s proper comparator under s. 9 of the Protection of Employees (Part-time work) Act 2001. There is no provision to allow another part-time worker to be used as a comparator.

Full-time teachers receive “a paid day off on the day” under s. 21(1)(a) of the OWTA in respect of public holidays (as the school is closed) whereas part-time teachers may receive either “a paid day off on the day” under s. 21(1)(a) of the OWTA or “an additional day’s annual leave” under s. 21(1)(c) of the OWTA dependent on whether they would have been due to work, in the ordinary course, on the day in question – in line with their rostered combination of days or hours.

The number of school closure days far exceeds the annual leave entitlement applicable for both full-time and part-time teachers, and far exceeds the pro-rata statutory annual leave entitlement and any additional annual leave days for part-time teachers occurring on foot of public holidays which arise in the circumstances described in this case.

I find for the Respondent.

CA-00048322-001: Complaint under the Payment of Wages Act 1991:

For the reasons set out above, I find that the Respondent’s policy in respect of public holidays is compliant with the Organisation of Working Time Act 1997.

I have carefully examined and considered the applicable legislation and case-law, the circulars produced by the DES, the relevant public holidays identified by the Complainant and when and how they fall throughout the school year, as well as the written and oral submissions before me and the evidence presented at the hearing by both sides.

The Organisation of Working Time Act 1997 sets out an exhaustive list of four ways in which an employer can discharge its duty to an employee in respect of public holidays. Which option is applied is at the employer’s election.

I find that the DES’s policy, in respect of part-time teachers whose typically rostered days do not include the day upon which the public holiday falls is legally compliant. The Respondent employer has discharged its duty to the Complainant in respect of public holidays by electing the option of an additional day’s annual leave in lieu of a public holiday as set out in s. 21(1)(c) of the Organisation of Working Time Act 1997, and then requiring that annual leave to be taken (along with all other annual leave entitlements) during the school closure days throughout the year. For completeness, the Complainant does not work on the day on which he is usually rostered off and on which the public holiday falls - the school is closed; and he is receiving his full pay, 1/26 every fortnight, as standard.

In respect of public holidays and the Payment of Wages Act 1991. I find that there are no monies outstanding to the Complainant and that this complaint is therefore not well-founded.

CA-00048322-002: Complaint under the Protection of Employees (Part-Time Work) Act 2001

I find that this complaint is not well founded.

The Protection of Employees (Part-Time Work) Act 2001 allows for the identification of a comparator who is a full-time employee for the purpose of determining whether a part-time employee is being treated less favourably in terms of their conditions of employment, as per s. 9 of the legislation. Another part-time employee cannot be used for this purpose.

In this instance, I find that the Complainant is not treated less favourably than his full-time colleagues. I find that they are not direct comparators with respect to all relevant public holidays (the five identified by the Complainant as applicable) as his full-time colleagues are rostered to work five days per week, which means that in the event of a public holiday different rules may apply to them. Full-time employees receive “a paid day off on that day” as per s. 21(1)(a) of the Organisation of Working Time Act 1997, at the determination of their employer, as the school is closed on a day which they would typically work and they also receive 1/26 of their salary every fortnight as usual, including when a public holiday falls within the relevant pay period. For public holidays which fall on a day where the Complainant would otherwise have been rostered to work, he is treated identically to his full-time colleagues, i.e. he receives “a paid day off on that day” as per s. 21(1)(a) of the Organisation of Working Time Act 1997, at the determination of his employer, as the school is closed on a day which he would typically work and he also receives 1/26 of his salary every fortnight as usual, including when a public holiday falls within the relevant pay period.

However, for public holidays which fall on a day in respect of which the Complainant would not otherwise be rostered to work, he receives “an additional day of annual leave” as per s. 21(1)(c) of the Organisation of Working Time Act 1997, which in line with the Circular covering annual leave arrangements, is to be taken during the school closure days. What has happened, in practice, is that the pro-rata annual leave entitlements of the Complainant along with any additional annual leave entitlement occurring on foot of public holidays which fall on days upon which he would not be typically rostered to work have been subsumed into the school closure days when the school is closed and when the Complainant is not required to report for work. School closure days are the same in number for full-time workers and part-time workers – obviously, no pro-rata applies in respect of them. I find that no less favourable treatment has been identified between the full-time employees cited as comparators and the Complainant, a part-time employee with a particular rostered work pattern.

I acknowledge and empathise with the Complainant’s frustration, particularly in light of the fact that he witnesses a direct comparison within his school – another part-time teacher who is rostered to work Mondays and Fridays, an arrangement the Complainant specifically facilitated at the request of the school, and which has persisted for many years. That teacher, due to her rostered days, works fewer hours in the weeks during the school year when a public holiday falls on a Monday or Friday, in addition to receiving the same blocks of time off in respect of school closure days (Christmas, Easter, midterms, summer) that the Complainant does and also receives 1/26 of her salary every fortnight, as usual unchanged, as the Complainant also does (and public holidays disproportionately fall on a Monday). However, for the purposes of the Protection of Employees (Part-time work) Act 2001, she is not a valid comparator, as she is another part-time employee rather than a full-time employee.

For the reasons set out, I find that the Respondent’s approach to this is compliant with the Organisation of Working Time Act 1997, and that no discrimination or less favourable treatment has been identified between the Complainant (a part-time worker) and a properly identified comparator who is a full-time worker under the Protection of Employees (Part-time work) Act 2001. I therefore find that this complaint is not well founded.

OWTA; Part-time worker; Teacher; Public holidays; Circular; Comparator; Rostering;