ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033505
Parties:
| Complainant | Respondent |
Parties | Iwona Boino | Children’s Health Ireland at Crumlin |
| Complainant | Respondent |
Parties | Iwona Boino | Children’s Health Ireland at Crumlin |
Representatives | Krystian Boino Hoban Boino Solicitors | Cait Lynch |
Complaint(s):
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-00048682-001 | 17/02/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00048682-002 | 17/02/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00044306-002 | 24/05/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00044306-003 | 24/05/2021 |
Date of Adjudication Hearing: 13/02/2023
Workplace Relations Commission Adjudication Officer: Brian Dalton
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Sworn evidence was given by all witnesses. However, in essence this case primarily is about the statutory interpretation of Regulation S.I. No. 475/1997 - Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997 with regard to the calculation of Public Holiday entitlement and whether payment should be made based on averaging or the normal daily hours worked as detailed at regulation 5.
Background:
This case primarily is about statutory interpretation of Regulation S.I. No. 475/1997 - Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997 about the calculation of Public Holiday entitlement. The Complainant is a nurse working at the hospital. She works 5 days between Monday to Friday and her normal daily hours are 8.5 hours. The Complainant was required to work an additional 42 minutes in respect of each of the 10 listed public holidays
Her Employer calculates her hours for the purpose of public holiday entitlement with reference to an Employer/Union Agreement by dividing the weekly hours worked by 5, that it says is also consistent with the requirement under the relevant Regulation S.I. No. 475/1997, as the shift pattern of the Complainant is not fixed.
Her Employer based on this agreement and Regulations determines that the Public Holiday hours to be paid based on an agreed formula between the HSE and the respective Unions. The Complainant stated that where the Public Holiday falls on a day normally worked and for that day her normal daily hours are 8.5 hours, then she is due to be paid 8.5 hours and not an amount calculated by averaging.
During the relevant period she was required to work 42 minutes x 10= 420 minutes= 6 hours based on a normal week of 39 hours which is 7 hours 48 minutes. The normal daily hours for the Complainant is 8.5 hours or 8 hours and 30 minutes, which means that on the Public Holiday she is paid for 8.5 hours; however, she must make up the overpayment which equals to 42 minutes.
The Respondent stated that it calculated her entitlement correctly having regard to collective agreements and the Regulation.
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Preliminary Matter
Wrong Respondent Named
The Respondent stated that the complaint is not properly before the tribunal as the Complainant has not named the correct legal entity. The Complainant has named the Respondent as Health Service Executive -Children’s Health Ireland at Crumlin. No such entity exists. The Respondent is Children’s Health Ireland at Crumlin.
While the Respondent noted that section 41(16) of the Workplace Relations Act 2015 provides for the correction of an administrative error, the naming of the wrong Respondent is not an administrative error. The Respondent relies on the Labour Court’s decision in Starrus Eco Holdings TA Greenstar Wastepal v Calvin Partner:
“What is in issue in this case does not involve a formal or verbal error. Nor does the complainant’s application relate to a determination issued by the court. The wrong respondent was impleaded and the union’s application is to amend the claim by substituting another legal person for the respondent cited. In the court’s view, that goes beyond what was intended by s 88 of the Act.”
Section 88 of the Employment Equality Act relates to a decision that has been made:
(2) By notice in writing to the parties, the Director General of the Workplace Relations Commission] or, as the case may be, the Chairman of the Labour Court may correct any mistake (including an omission) of a verbal or formal nature in a decision or determination under this Part.
In Regan Employment Law (Bloomsbury 2nd ed, 2017) the matters referred to are comprehensively considered at 28:
Power to amend decision
[28.51]
Section 44(8) of the 2015 Act provides that the Labour Court, by notice in writing given to all parties to an appeal under that section, may correct any mistake (including any omission) ‘of an administrative or clerical nature’ in a decision under that section in relation to the appeal. Section 88(2) of the Employment Equality Act 1998, however, provides that the Chairman of the Labour Court may correct any mistake (including an omission) ‘of a verbal or formal’ nature in a decision under Part VII of that Act.
The ambit of these powers was considered by the Labour Court in Travelodge Management Ltd v Wach 95 and Starrus Eco Holdings v Larkin. 96 In the former case the complainant had initiated her complaint against the respondent company believing it to be her employer. At the hearing before the Equality Tribunal, she sought to amend the title of the proceedings but the Equality Officer declined to do so and awarded her €63,000. The company appealed and the complainant cross-appealed against the refusal to amend the name of the respondent.
The Labour Court accepted that the complainant named the wrong respondent as a result of a bona fide mistake and further found that the complainant was never employed by the respondent. Consequently, the question before the Court was whether the corporate entity that was the actual employer could be substituted for the respondent named in the complaint. The Labour Court was of the view that s 88(2) of the 1998 Act was not intended to deal with this situation. What was in issue did not involve any formal or verbal error on the part of the Equality Officer or the Labour Court.
In the latter case, the notice of appeal did not name the respondent to the appeal in the same format as the title given to the respondent at first instance. The adjudication officer’s decision named the respondent as ‘Starrus Eco Holdings t/a Wastepal Ltd’. The notice of appeal, however, named the respondent to the appeal as ‘Greenstar’. The Labour Court applied the reasoning in Wach and declined jurisdiction
In this case no decision has been made.
I note the right to amend pleadings as set out by McGovern J in County Louth VEC v Equality Tribunal [2009] IEHC 370 and also as determined by Ballarat Clothing Lt v Aziz Ballarat Clothing Ltd v Aziz EDA151 (23 January 2015). Regan in Employment Law provides a succinct summary of these cases.
Amendment of complaint form
[28.11]
The circumstances in which the details on a complaint form can be amended were fully considered by the Labour Court in An Employer v A Worker. 28 In this case, the complainant alleged that she was discriminated against in the course of applying for a position with the respondent company. The company contended that she had not applied for a job but for a self-funded training programme. The Labour Court was satisfied that, if the interview following which she was not selected was not directed at access to employment within s 8(1)(a) of the Employment Equality Act 1998, it was ‘most undoubtedly directed at vocational training’ within the meaning of s 12(2). Having regard to the observations of McGovern J in County Louth VEC v Equality Tribunal 29 that the complaint form was only intended to set out in broad outline the nature of the complaint and that it was permissible to amend a claim set out therein ‘so long as the general nature of the complaint...remains the same’, the Court was satisfied that the complaint form could be legitimately amended to reflect the proper construction of the claim.
In Ballarat Clothing Ltd v Aziz, 30 the complainant (who was not legally trained or advised) incorrectly filled in the complaint form naming the individuals who were directors of the company, but not the company itself, as the employer. The Equality Tribunal dismissed the complaint under s 77A(1) of the 1998 Act as being ‘frivolous, vexatious or misconceived’. The complainant appealed to the Labour Court and the company submitted that the Court had no authority to substitute it for the two named directors.
The Court noted that the company acknowledged that it was aware from the commencement of the case that an error had been made and that it would suffer no prejudice were the appeal to be allowed. In these circumstances, the Court felt that, not to allow the appeal for such a technical reason would be a ‘grossly disproportionate response’.
In Department of Foreign Affairs v Cullen, 31 however, the Labour Court said that an amendment would not be allowed if its effect would be to permit the complainant to pursue a complaint that would otherwise be excluded by s 77(5) of the 1998 as being statute barred.
Cullen must be differentiated from this case as it related to amending a form where the matters complained of in the original form were statute barred and nothing to do with the name of the respondent:
Preliminary issue
Having received the written submissions of the parties the Court held a case management conference to consider procedural maters arising in the case. At this conference the Respondent sought directions from the Court in respect to two preliminary issues arising in the case. Firstly, the Respondent sought a ruling from the Court on whether a claim of victimisation was properly before it. Here the Respondent contended that the Complainant had never complained of victimisation, or had done so only at the hearing before the Equality Tribunal, at which point any such complaint was out of time. Secondly, the Respondent contended that the Complainant was relying on events which occurred over a significant timeframe, many of which were outside the time limit prescribed by s 77(5) of the Acts.
I note the High Court judgement in Capital Food Emporium (Holdings) Ltd v John Walsh [2016] IEHC 725 where it was held that an application by the Respondent to dismiss the action was unsuccessful where the Respondent was at all times aware that the claim was directed against it. This case related to a complaint where the Respondent had been named as Michael Andrews t/a Clodagh McKenna Restaurants. Before the Rights Commissioner issued his decision, the Complainant wrote to change the name to Capital Food Emporium (Holdings) Ltd t/a Clodagh Mckenna Restaurants. I also note the High Court judgment O’Higgins v University College Dublin [2013] IEHC where the Complainant brought a statutory appeal against the Labour Court in a claim against University College Dublin. It was held by the court that:
“Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be)….In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts”
For reasons not dissimilar I find that the Respondent has suffered no prejudice, is fully aware of the complaints made against them and has been on full notice of the date time and hearing of this matter and is in attendance. To find against the Complainant on such a technical error would be unjust. As per the Respondent’s submission dated 1st of April 2022 the Respondent is Children’s Health Ireland at Crumlin and the complaint form is so amended.
Summary of Complainant’s Case:
The Complainant is a nurse working at the hospital whose normal daily hours are 8.5 and she either works or is required to work during a day that is a public holiday. Therefore she is entitled a day off on days when a public holiday falls at payment equal to the sum paid to them in respect of normal daily hours and in her case that is 8.5 hours.
Her Employer calculates her hours for the purpose of public holiday entitlement with reference to an Employer/Union Agreement and (HSE policy) by dividing the weekly hours based on a 39 hour week by 5. The Respondent says this is also consistent with the requirement under the relevant Regulation S.I. No. 475/1997 because the shift pattern of the Complainant is not fixed, and she has liability to work over 7 days.
Her Employer based on a collective agreement and Regulations determines that the Public Holiday hours to be paid is hours as per the requirement under the Regulation.
As she is paid for 8.5 hours for the Public Holiday; however, as her entitlement as determined by her Employer based on an averaging formula of hours worked divided by 5, her Employer requires that the balance of 42 minutes is worked back.
The Complainant alleges that the Employer is in error regarding how it calculates her Public Holiday entitlement and that of right she should be paid 8.5 hours and is under no obligation to repay or work back 42 minutes as her Public Holiday entitlement is underestimated by this amount of each Public Holiday.
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Summary of Respondent’s Case:
The Complainant is a theatre nurse working at the hospital.
The Respondent calculates her hours for the purpose of public holiday entitlement with reference to an Employer/Union Agreement and (HSE policy) by dividing 39 hours by 5, that it says is also consistent with the requirement under the relevant Regulation S.I. No. 475/1997 as the shift pattern of the Complainant is not fixed. It has always been the practice within the Respondent company to assign a 7.8 hour roster to theatre staff on a public holiday. This means that sometimes 1 shift during the shift has to be extended by 42 minutes to make up the full hours for the employee.
The Respondent also stated that it is a common misconception that public holidays that fall on a weekend move to the following Monday. Employers may choose to assign the benefit of public holiday that falls, for example on a Saturday, to the following Monday in the form of a paid day off, however, this is not legally required. The Complainant has been paid in line with her contract of employment.
Her Employer based on this agreement and Regulation determines that the Public Holiday hours to be paid is 7 hours and 48 minutes as per the requirement under the Regulation.
· The Complainant is a theatre nurse and works on a 5 over 7-day basis and has contracted hours over 7 days including Sundays and Public Holidays. · The applicable terms that apply in this case is 1/5th of contracted hours for each public holiday. · The difference with 5 over 5 staff is they have fixed rostered hours each day with no liability to work weekends or public holidays. · The variability in her hours and liability to work over 7 days means that as per policy her public holiday entitlement is based on her contractual hours divided by 5. · The pattern that the Complainant now works only arises due to the flexibility of the Respondent employer. Unlike 7 over 7 staff, 5 over 5 staff have that day off, based on whatever hours they are normally rostered. |
Findings and Conclusions:
Organisation Working Time Act: Section 21 of the Organisation Working Time Act provides that: Entitlement in respect of public holidays. 21.— (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. And section 22 states that Public Holiday entitlement will be calculated as follows: Public holidays: supplemental provisions. 22.— (1) The rate— (a) at which an employee is paid in respect of a day off under section 21, and (b) of an employee’s additional day’s pay under that section, shall be such rate as is determined in accordance with regulations made by the Minister for the purposes of that section. Regulation S.I. No. 475/1997 - Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997 states that: 3. (1) The normal weekly rate of an employee's pay, for the purposes of sections 20 and 23 of the Act (hereafter in this Regulation referred to as the "relevant sections"), shall be determined in accordance with the following provisions of this Regulation. (2) If the employee concerned's pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be 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) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs. And regulation 5 states: 5. (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, On the facts the Complainant’s rate of pay is: a) A time rate that does not vary b) And the employee concerned works or is normally required to work during any part of the day which is a public holiday, then— The Complainant is entitled to be paid as follows: · the employee concerned works or is normally required to work during any part of the day which is a public holiday, then · 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, The fact that this working pattern has been agreed and amended by agreement does not negate the obligation for her to work a 8.5 hour shift. The Employer has stated that it is only because they are flexible that the Complainant can work 8.5-hour shifts. However, once agreed and where the Complainant is required to work those hours the payment for a Public Holiday is required to be determined with reference to the normal daily hours last worked by her before that public holiday. The agreed pattern of work in fact has been in place for some time and does not vary materially. Contract/Collective Agreement: In this case the Respondent stated that under the terms and conditions of her contract the correct entitlement is being paid. · The Complainant is a theatre nurse and works on a 5 over 7-day basis and has contracted hours over 7 days including Sundays and Public Holidays. · The applicable terms that apply in this case is 1/5th of contracted hours for each public holiday. · The difference with 5 over 5 staff is they have fixed rostered hours each day with no liability to work weekends or public holidays. · In such case when a public holiday falls, 5 over 5 staff have that day off, based on whatever hours they are normally rostered. The terms of any contract or collective agreement do not override her statutory entitlement under the Organisation of Working Time Act. I note that Section 20(3) of the Act states: (3) Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of, and the pay in respect of, his or her annual leave. However, it is not the case that an employer and employee can enter arrangements that are less favourable to the employee regarding the times of, and the pay in respect of, his or her annual leave. A Public Holiday and Annual leave are interchangeable in so far as both are a statutory right and an arrangement cannot reduce or bind a party to a less favourable term than the statutory entitlement. After an initial hearing and prior to any decision being made the following email was received from the Respondent: Dear Sirs, I am writing to you on behalf of the Respondent with regard to the above case which was heard on 1st April 2022. The Respondent is compelled to submit this evidence which illustrates a redacted copy of the Complainants’ roster in 2020, March 2021, August 2021, January 2022, and March 2022. It shows that each of the Complainant’s did not work the same roster each week over the last number of years as cited under affirmation within the hearing. I would compel the adjudicator to take these pieces of evidence into consideration in his decision of the hearing. Kind Regards, Eoin In reply to this email, the Complainant’s representative wrote to the Commission on 5th of August 2022: Dear Mr Dalton, We refer to the above matter and previous correspondence. We note that a hearing is scheduled to take place on 03/10/2022 in respect of all claims regardless of the fact that the initial claims were already heard over two separate hearings. Rosters Despite two separate hearings which took place on 01/04/2022 and11/04/2022 employer only on 19th May 2022 emailed further documents- some sample rosters. The rosters emailed contain: - Week starting 02/08/2021 - Week starting 23/08/2021 - Week starting 15/03/2021, although employer representative email refers to “roster in 2020, March 2021, August 2021, January 2022 and March 2022”. We respectfully asked in an email dated 08/07/2022 to be provided with all the rosters mentioned by the employer representative before we can formulate a comprehensive response. We also subsequently sent copy of that email directly to employer representative IBEC on 19/07/2022. We received absolutely no reply to date. PLEASE now consider requiring the respondent employer to produce all rosters for a period of three years prior to the original complaint being lodged on 24/05/2021 so from May 2018 and up to today’s date. Complainants herein consistently maintained that they are normally required to work on Mondays (where most of the bank holidays fall during the year) and they never claimed that they never worked on Saturday or Sunday (albeit some exemption in relation to one of the Complainants who up to date of last hearing never worked on Saturday or Sunday). Employers’ presentation of rosters covering 3 weeks from over104 weeks in question (if we only consider years 2020 and 2021) does not reflect what are the complainant’s normal working hours. We are submitting that the Adjudicator shall have a sight of ALL rosters to have a full and clear picture of work patterns and what is complainants’ normal working week or other words- if they are normally required to work on a day that is a public holiday. We look forward to hearing from you and thank you for your assistance. Yours faithfully, During the investigation of the complaints the Respondent was requested to elaborate on the collective agreement that it relied upon to calculate public holiday entitlement. The following reply from the Respondent details the policy applied to the calculation of Public Holiday Pay: 24th October 2022 Dear Mr Dalton You have requested that we forward a copy of the collective agreement that we are seeking to rely upon to calculate public holiday entitlement as the Complainants, through their legal representative, does not accept that the document entitled “Guidelines on Terms and Conditions of Employment” (hereafter referred to as the “Guidelines”) issued by the HSE forms part of their terms and conditions of employment. In response to this request, you might kindly note the following: 1. There is no one document or collective agreement which applies in this situation. Instead terms and conditions of employment are agreed and negotiated through Social Partnership Agreements, circulars and custom and practice. 2. The Respondent is generally referred to as a “section 38 hospital”. Section 38 hospitals are funded under Section 38 of the Health Act 2004 and its employees are classified as public servants. They are subject to the standard salary scales for the health sector as well as having access, in the main, to a public service pension scheme. 3. The Respondent was established by Children’s Health Act 2018. In relation to “Policy directions and guidelines” section 7 of this Act states that “Children’s Health Ireland shall have regard to Government policy to the extent that it may affect or relate to its functions and shall comply with any policy direction or guidelines that may from time to time be notified to it by the Minister”. The Minister being referred to here is the Minister for Health. The Respondent is therefore legally obliged to follow the guidelines issued by the Minister for Health or the body to whom he has delegated this function to, which for healthcare, is the HSE. The HSE fulfils this function by issuing circulars and guidelines. This is why the Respondent follows the Guidelines. 4. There is nothing new in relation to this. Prior to the establishment of the Respondent, the individual hospitals adopted a similar approach as each was a section 38 hospital in its own right. 5. The Guidelines represent a summary of the various circulars and national agreements which are relevant to employees engaged by section 38 hospitals. The Disclaimer contained in the Guidelines states as follows: “The HSE Terms and Conditions of Employment guideline is a compendium of the various terms and conditions of employment which currently apply in the HSE. The terms derive from circulars, national agreements and/or legislation and every effort should be made to ensure conformity and consistency of application of the terms and conditions which are set out in the document. In the event of dispute regarding the contents of this guideline, the relevant circular, policy, collective agreement or legislation on which the guideline is based will be the definitive source of reference and its provisions will take precedence. 6. The 2017 version of the Guidelines replaced an earlier version dated in 2006. It should be noted that the recommended method of calculation of public leave pay is identical in the 2006 and 2017 versions of the Guidelines and therefore this method of payment has been established within the public sector for over 16 years. 7. The compressed working week or the 5 over 7 working patterns has its foundation in social partnership agreements such as Sustaining Progress 2003 -2005 and Towards 2016 (which covered the period 2006-20016). Section 30.4 of this latter agreement was entitled “Matching Working Patterns to Service Needs”. The agreement stated that: “The parties accept that the continued provision of many health services on the traditional 9am -5pm “office hours” basis is inconsistent with the vision contained in the Health Strategy. An extended time span, during which the normal daily hours will be worked, leading to extended hours of service (e.g. 8am - 8pm) will be introduced to underpin the provision of significantly more accessible services to the public. The parties are committed to discussions, with a strong local focus, where appropriate, to establish how this can best be achieved. These discussions will explore relevant issues including the scope for voluntary arrangements and flexible working. 8. Ultimately, this resulted in an agreement between the HSE and the health service trade unions which was captured in HSE HR Circular 003/2009. Contracts of employment thereafter referred to the fact that: “You will be required to work the agreed roster / on call arrangements advised to you by your line manager. Your contracted hours of work are liable to change between the hours of 8am –8pm over seven days to meet the requirements for extended day services in accordance with the terms of the Framework Agreement.” 9. While the 5 over 7 working week has existed before this circular, this was the first occasion where it was introduced on a national level and was a condition of all new entrants into the HSE and section 38 hospitals. 10. The Haddington Road Agreement sought to introduce a standard working week which ranges from 35 – 39 hours. The Complainants are required to work 39 hours per week but are permitted by the Respondent to compress these hours into a number of days by working longer hours. 11. The Complainants working week is equivalent to that of 5 over 7 pattern. This is not disputed by them. As an organisation we are cognisant of these guidelines and the complainants have been paid correctly on the week of a Public Holiday. 12. The Complainants are seeking to rely on the case of Cheshire Ireland v Margaret Gallagher. It is the Respondent’s view that this is being incorrectly interpreted. Ms Gallagher did not work 5 over 7, she had very set hours. This is not the case in this situation. While there may be some consistency in the roster, this is at the employees’ request which is facilitated by the Respondent. The Complainants’ normal weekly hours can and do change however they need to total 39 hours per week. Ms Gallagher was never expected to work a public holiday, while this is not the case with the Complainants. 13. Alterations to how public holiday pay is calculated would create a significant administrative burden not only for the Respondent. This would mean that the Respondent would have to review the roster for the 13 weeks before each public holiday and establish who was or was not required to work the public holiday. In terms of financial impact, given the fact that each Complainant is seeking on average €1,000 compensation, which for the Respondent alone would mean a potential financial increase of €40,000 (there is reference to their being 40 theatre nurses alone in Crumlin Hospital) 14. In summary, the Respondent makes every effort to comply with the Guidelines which form part of the Complainants terms and conditions of employment and is acting in compliance with the legislation Evidence-Normal Daily Hours: While the Respondent made a very late submission to state that the Complainant’s shift pattern changed, that evidence was highly selective and was limited to weeks when what is in issue is the pattern for an annual leave year. I do not find that evidence compelling and prefer the sworn evidence of the Complainant. That evidence was challenged at a reconvened hearing, and it is abundantly clear and consistent with the Complainant’s sworn evidence that her pattern is predictable and follows a set pattern. Her hourly rate of pay is fixed, and her normal daily hours are also constant at 8.5 hours Monday to Friday and do not vary according to the task or work being completed. On the evidence there is no collective agreement in place regarding the Complainant that specifies a less favourable rate to apply to her for calculating her Public Holiday entitlement. The terms of any contract or collective agreement do not override her statutory entitlement under the Organisation of Working Time Act. I note that Section 20(3) of the Act states: (3) Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of, and the pay in respect of, his or her annual leave. However, it is not the case that an employer and employee can enter arrangements that are less favourable to the employee regarding the times of, and the pay in respect of, his or her annual leave. The Complainant relies upon Labour Court decision Cheshire Ireland v Margaret Gallagher (DWT 1673 WTC/16/55) where the court determined that the Complainant’s Public Holiday entitlement should be calculated: The application of Regulation 5(1)(a) requires an interpretation of what is meant by the expression “normal daily hours last worked by the employee” as is appears in that paragraph. Regulation 5(2) provides that if the public holiday falls on a day on which the Complainant is not rostered to work and does not work e.g. Monday, Friday, Saturday and Sunday, the appropriate rate is one-fifth of a week's pay. The Complainant’s patterns of work: - It is not in dispute that the Complainant’s weekly rate of pay does not vary and that she does not work on public holidays. The Complainant’s normal patterns of work are that she works 7 ½ hours per day on Mondays and Tuesdays and 4 hours on Fridays. Therefore in accordance with Section 21 of the Act she is entitled to a day off on days when the public holiday falls on a Monday, Tuesday or Friday, at her normal day’s pay for that day. The Complainant does not normally work on Wednesdays and Thursdays and therefore in accordance with Regulation 5(2) when a public holiday falls on either of these days she is entitled to a “normal day’s pay” for which, in accordance with its provisions, the appropriate rate is one-fifth of a week's pay. In the cognisable period covered by this claim, there were three public holidays, namely the June, August and October 2015 public holidays. The Respondent provided the Complainant with a choice in respect of her entitlement, she could either:- (i)be paid her normal day’s pay for the day (7.5 hours’ pay) in which case 7.5 hours was deducted from her annual leave, comprising the deduction of 3.8 hours granted in respect of the public holiday and a further deduction of 3.7 hours from her general annual leave entitlement of 23 days; or (ii)be paid 3.8 hours for the day. As each of the three public holidays in question fell on a Monday, the Complainant received one fifth of her weekly hours in the form of extra annual leave for each public holiday i.e. 3.8 hours. Therefore the Court is satisfied that the Complainant did not receive her full entitlement for the three public holidays in question. the deduction of 3.7 hours from her basic annual leave does not satisfy the requirements of the Act. Therefore the Court finds that the Complainant’s entitlement was 3.7 hours short on each of those three Mondays. Therefore the Complainant had a total shortfall of €210.46 for the cognisable period covered by the claim. Determination In the circumstances the Court finds that the Respondent was in breach of Section 21 of the Act on the three occasions in question and orders the Respondent to pay the Complainant the sum of €210.46 plus €1,000.00 in compensation, i.e. a total payment of €1,210.46 must be paid to the Complainant. Claims: In a detailed submission received by the Commission on the 25th of March 2022 the following was claimed on behalf of the Complainant: “When the two separate complaints are submitted are considered following public holidays are within the Adjudicator jurisdiction: [ Note first complaint form lodged on 24th of May 2021 and second 17th February 2022] 1. Friday 25/12/2020 2. Saturday 26/12/2020 3. Friday 1/01/2021 4. Wednesday 17/03/2021 5. Monday 5/04/2021 6. Monday 03/05/2021 7. Monday 25/10/2021 8. Saturday 25/12/2021 9. Sunday 26/12/2021 10. Saturday 01/01/2022 The Regulations specifically exclude overtime from the calculation of Public Holiday entitlement. However, this complaint is also being brought under the Payment of Wages Act where it is claimed the overtime premium forms part of contractual conditions. The argument being that where hours have been worked, they must be viewed as hours worked over and above basic hours. The Complainant works Monday to Friday. In line with Cheshire: The Complainant’s normal patterns of work are that she works 7 ½ hours per day on Mondays and Tuesdays and 4 hours on Fridays. Therefore in accordance with Section 21 of the Act she is entitled to a day off on days when the public holiday falls on a Monday, Tuesday or Friday, at her normal day’s pay for that day. And the following Public Holidays should be paid at 8.5 hours: 1. Friday 25/12/2020 because she is normally required to work on Friday and the last amount paid to the employee in respect of the normal Daily hours last worked by her before that public holiday, was 8.5 hours. 2. Not Saturday 26/12/2020 (there is no automatic entitlement to have the next working day off work, so it cannot be assumed that it would be a Monday. 3. Friday 01/1/2021 as explained at (1) 4. Wednesday 17/03/2021 as it is a scheduled shift where she works 8.5 hours. 5. Monday 05/04/2021 (Easter Monday) 6. Monday 03/05/2021 7. Monday 25/10/2021 8. Not Saturday 25/12/2021 as there is no automatic entitlement to have the next working day off work, so it cannot be assumed that it would be a Monday. 9. Not Sunday 26/12/2021 as there no automatic entitlement to have the next working day off work, so it cannot be assumed that it would be a Monday. 10. Not Saturday 01/01/2022 as there is no automatic entitlement to have the next working day off work, so it cannot be assumed that it would be a Monday. Having regard to the two different dates when complaint forms were lodged with the Commission on the 24th of May 2021 and on the 17th of February 2022, I determine that the following Public Holidays should have been classed as days where normal daily hours should have been paid as 8.5 hours shifts: 1. Friday 25/12/2020 2. Friday 01/01/2021 3. Wednesday 17/03/2021 4. Monday 05/04/2021 5. Monday 03/05/2021 6. Monday 25/10/2021 Having regard to the normal working pattern for the Complainant these days were underpaid by 42 minutes. CA-000044305-0002 Organisation of Working Time Act 1997 as amended: Section 27 (3) states: (3) 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 determine that the complaint is well founded, and I require that the Respondent Employer comply with Regulation 5 of S.I. No. 475/1997 that states: And regulation 5 states: 5. (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, And as appropriate calculate the Complainant’s Public Holiday entitlement based on her normal daily hours last worked by her before that public holiday where it is normally worked as prescribed under regulation 5(1). I assess actual loss as occurring on 5 Public Holidays and based on 5 x 42 minutes underpayment for this complaint period= 3.5 hours and based on a flat rate of €28.50= €100 I require the Respondent to pay to the employee compensation of € 300 inclusive of her actual loss an amount I determine to be just and equitable having regard to all the circumstances of this case. CA-00048681-001 Organisation of Working Time Act 1997 as amended: I determine that the complaint is well founded, and I require that the Respondent Employer comply with Regulation 5 of S.I. No. 475/1997 that states: And regulation 5 states: 5. (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, And as appropriate calculate the Complainant’s Public Holiday entitlement based on her normal daily hours last worked by her before that public holiday. I assess actual loss as occurring on one Public Holiday to be a 42-minute underpayment for this complaint period this equate to a €20 underpayment. In essence this is a relatively small breach and having regard to the requirement to ensure that an award is just in all the circumstances I award €100. CA-00044305-003: Payment of Wages Act 1991: The facts of this case overlap with CA-00044305-02 Organisation of Working Time Act 1997 and to make an award under this heading would amount to double compensation. I find the complaint is only partly well founded; however, decide not to make an award of compensation. CA-00048681-002: Payment of Wages Act 1991: The facts of this case overlap with CA-00048681-001 Organisation of Working Time Act 1997 and to make an award under this heading would amount to double compensation. I find the complaint is partly well founded; however, decide not to make an award of compensation |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-000044305-0002 Organisation of Working Time Act 1997 as amended: I determine that the complaint is well founded and I require that the Respondent Employer comply with Regulation 5 of S.I. No. 475/1997 that states: And regulation 5 states: 5. (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, And as appropriate calculate the Complainant’s Public Holiday entitlement based on her normal daily hours last worked by her before that public holiday where it is normally worked as prescribed under regulation 5(1). I assess actual loss as occurring on 5 Public Holidays and based on 5 x 42 minutes underpayment for this complaint period= 3.5 hours and based on a flat rate of €28.50= €100 I require the Respondent to pay to the employee compensation of € 300 inclusive of her actual loss an amount I determine to be just and equitable having regard to all the circumstances of this case. CA-00048681-001 Organisation of Working Time Act 1997 as amended: I determine that the complaint is well founded, and I require that the Respondent Employer comply with Regulation 5 of S.I. No. 475/1997 that states: And regulation 5 states: 5. (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, And as appropriate calculate the Complainant’s Public Holiday entitlement based on her normal daily hours last worked by her before that public holiday. I assess actual loss as occurring on one Public Holiday to be a 42-minute underpayment for this complaint period this equate to a €20 underpayment. In essence this is a relatively small breach and having regard to the requirement to ensure that an award is just in all the circumstances I award €100. CA-00044305-003: Payment of Wages Act 1991: The facts of this case overlap with CA-00044305-02 Organisation of Working Time Act 1997 and to make an award under this heading would amount to double compensation. I find the complaint is only partly well founded; however, decide not to make an award of compensation. CA-00048681-002: Payment of Wages Act 1991: The facts of this case overlap with CA-00048681-001 Organisation of Working Time Act 1997 and to make an award under this heading would amount to double compensation. I find the complaint is partly well founded; however, decide not to make an award of compensation. |
Dated: 14th September 2023.
Workplace Relations Commission Adjudication Officer: Brian Dalton
Key Words:
Public Holiday |