Complainant

Respondent

Parties

Benedict  Chukwurah

Framewell Limited

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-00061979-001

05/03/2024

The complainant was employed as a community officer with the respondent.  This complaint, received 5 March 2024, concerns public holiday entitlement in respect of 25 December 2023.

The complainant commenced employment with the respondent as a community officer on 20 December 2023.  He worked 25 December 2023 but was only paid his normal hourly rate of pay of €15.00 per hour.  When the complainant queried payment for the public holiday, he was told he needed to have worked a minimum number of hours preceding the public holiday to be entitled to public holiday benefit.

The complainant contested the respondent’s position on the basis that the minimum hours worked requirement only applies to part-time employees.    The complainant’s contract of employment did not refer to him as a part-time employee and he has never worked hours below the number of hours required of a full-time employee. 

The complainant submitted that he was only told he was recruited as a part-time employee to justify non-payment of the public holiday entitlement.  The complainant maintained that he was recruited by the respondent as a full-time employee and that the respondent’s application of the part-time criteria for public holiday payment was incorrect.

The complainant was rostered to work 12-hour shifts over the course of his employment from 20 December 2023 to 5 March 2024.  He generally worked 36 to 48 hours per week, as set out in his contract of employment.

The complainant was employed with the respondent from 20 December 2023 until 5 February 2024.

The complainant was scheduled and did in fact work Christmas Day, 25 December 2023.

The complainant’s public holiday entitlements were calculated as a part-time worker as his employment was for a trial period and was not based on a fixed number of hours. The complainant did not qualify for public holiday entitlement for working 25 December 2023 as he had not worked 40 hours in the 5-week period preceding the public holiday.

The complainant’s last worked shift was 4 February 2024 but as a gesture of good faith the February 2024 public holiday entitlement was paid to the complainant.

The respondent believed it had correctly applied and paid the complainant his public holiday entitlements in accordance with the law and submitted that any error in this regard was not intended.

The respondent fully disputed any claims of preferential treatment of other employees in relation to public holiday entitlements.

It was the complainant’s case that he had been employed by the respondent as a full-time employee and, in such circumstances was entitled to public holiday entitlement in accordance with section 21(1) of the Organisation of Working Time Act 1997 (the “1997 Act”).  He submitted that section 21(4) of the 1997 Act only applies to part-time employees.

The Law

Section 21 of the 1997 Act states: -

“(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”

Section 21(4) of the 1997 Act qualifies the above-mentioned public holiday entitlement in providing:-

“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.”

Application of the law

The respondent employs a cohort of community officers who are responsible for completion of health and safety tasks and management of facilities at two serviced locations.  Community officers are rostered to work 12-hour shifts which rotate between the team as cover is required 24 hours per day, 7 days per week.  The community officer team is made up of part-time and full-time employees.  Part-time employees cover shifts to enable holiday and other leave arrangements. 

On the respondent’s account of the 276 hours worked by the complainant during his employment, I have calculated the complainant’s average weekly working hours to have been 42 hours per week, which was in accordance with his contract of employment which provided in relation to hours of work-

“You are normally required to work a between 36 and 48 hours per week depending on roster requirements.”

The complainant submitted documentation showing scheduled shifts over the course of his employment, with average weekly working hours of 48 hours.

I am satisfied that the complainant was not employed as a part-time employee.  There was no evidence before me that his hours of work were less than those of a whole-time or full-time employee.

The meaning of section 21(4) is plain in providing that the minimum hours threshold for entitlement to public holiday benefit does not apply to an employee who is a whole-time employee.  I am not satisfied of any justification for departing from a literal reading of the statutory provision. 

In accordance with section 27 of the 1997 Act, I find that this complaint of a contravention of section 21 is well founded.  I further decide that the respondent is required to pay the complainant compensation in the sum of €360.00.    In this regard, I have taken account of the complainant’s rate of pay of €15.00 per hour and the fact that the complainant worked his normal daily hours, a 12-hour shift, on the relevant public holiday, 25 December 2023.  I accept the bona fides of the respondent in its submissions to the Commission, including its willingness to address any mistake on its part, and I also acknowledge the efforts on the part of the complainant in having to address this issue.  I consider the compensation as assessed to be just and equitable having regard to all the circumstances.

I find that this complaint is well-founded and require the respondent to pay to the complainant compensation of €360.00 which I consider just and equitable having regard to all the circumstances.

Organisation of Working Time Act – Public holiday entitlement – Section 21(4) minimum hours threshold