ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00041108

Parties:

	Complainant	Respondent
Parties	Adrian Stefan	Mater Misericordiae University Hospital

	Complainant	Respondent
Representatives		Judy McNamara IBEC

Complaint:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00052332-001	22/08/2022

Date of Adjudication Hearing: 26/07/2023

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint (or complaints). I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered.

In particular, the Complainant herein has referred one complaint of a contravention of the The Organisation of Working Time Act 1997. The complaint is of a contravention under Section 21 of the Act which sets out those circumstances which give rise to 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.

(2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday.

(3) If an employer fails to comply with a request under subsection (2), he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day’s pay.

(4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.

(5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule.

(6)For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work.

Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:

(i) Declare the complaint was or was not well founded;
(ii) Require the Employer to comply with the relevant provision;
(iii) Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.

Background:

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to require that all parties giving oral evidence before me, would swear an oath or make an affirmation as may be appropriate. I confirm that I have in the circumstances administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence.

Summary of Complainant’s Case:

The Complainant was not represented and made his own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant provided me with a submission on the hearing date. The Complainant also relied on the submission outlined in the Workplace Relations Complaint Form. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that he was no given due entitlement in respect of Public Holidays which occurred in the six-month period prior to the issuing of the within complaint.

I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

The complaint herein was brought before the WRC by way of a complaint form which issued on the 22nd of August 2022.

Summary of Respondent’s Case:

The Respondent had representation at this hearing. The Respondent provided me with a comprehensive written submission in advance of the hearing. I have additionally heard from a witness for the Respondent -the Deputy Director of HR. including the. All evidence was heard following an Affirmation.

The Respondent rejects that there has been a breach of the organisation of working time Act, and does not accept any contravention of Employment Rights as protected by statute.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

Findings and Conclusions:

The Complainant made his own case. He commenced his employment in 2013 as a senior Clinical engineering technician. His Contract of Employment imposed a liability to be on call from time to time. By the time the Complainant tendered his resignation on the on the 27th of June 2022, the on-call arrangements were that he would be available for one week in every four. I understand that the Complainant rarely had to return to the workplace while on-call, and would generally have to be available to take phone calls.

A cycle of being on-call started on a Monday (evening) and ran through the weekday evenings and through the weekend. The Complainant found being on-call quite onerous as he could not move too far from the Hospital on the off chance that he might be called in. A flat fee of €450.00 was payable in respect of the on-call cycle. If the Complainant had to attend the Hospital in person a further payment would apply.

The Complainant notes that from time to time the on-call arrangement fell on a public Holiday. He argued that although he was not in the workplace on the Public Holiday, the day was not like a normal Public Holiday as he was always on edge because a call might come in.

The Respondent points out that the Complainant in reality got to enjoy his Public Holiday as a day off save insofar as he was expected to take calls (as workplace queries arose) and that he was adequately recompensed for this through the applicable fee.

On balance I accept that the Employer has failed to acknowledge that the Complainant cannot in fact enjoy his Public Holiday in the way that it is intended if he is on call. For example, he cannot go away for a long weekend if he is on call as he must stay close to the Hospital.

There was some disagreement concerning the number of public Holidays that the complainant worked in the relevant period. The Complainant says there were two whilst the Respondent says there was one.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

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

CA-00052332-001 – The Complaint herein is well founded. The Complainant is entitled to have the fact of his being on call (and available) on a Public Holiday to be acknowledged. In assessing a just and equitable compensation I am mindful of the fact that being on call is not onerous and I award €200.00.

Dated: 05/09/2023

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Key Words: