Complainant

Respondent

Parties

Mark  Maloney

Health Service Executive

Representatives

 Unite the Union

 Employee Relations Department

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-00054733-001

27/01/2023

The complainant is employed by the respondent as a Plumber. The issue concerns an alleged breach of the Organisation of Working Time Act, 1997 in respect of public holiday entitlement. The public holiday in question is the 31st October 2022 and the complainant contends that he did not receive the appropriate public holiday benefit in line with the provisions of the legislation.

The complainant was represented at the adjudication hearing by his Trade Union. The complainant’s position is that he was on-call during the week of the public holiday in October 2022. The complainant accepts that he was paid for the day of the public holiday and that he also received the agreed €210 on-call allowance in respect of the seven days that he was on call that week. The complainant also accepted that he was not required to attend the workplace on the 31st October 2022. The complainant contends that because he was at his employer’s disposal on the public holiday, he should receive an additional day’s pay, or an additional day of annual leave as provided for in the legislation.

The respondent’s position is that it has not breached the legislation. The respondent confirmed that the complainant was paid his public holiday entitlements in respect of 31st October 2022 and was also paid the agreed on-call allowance in respect of the seven days that he was on call.

In respect of the 31st October 2022, the respondent accepted that the complainant was at the employer’s disposal but was not required to attend the workplace on that day and as such was not engaged in working time. The respondent argued that the payments made to the complainant meet the requirements of the legislation.

The respondent referred to the Labour Court Determination in HSE V Byrnes DWT068 in support of its position that the entitlements provided to the complainant were appropriate and that it had not breached the legislation.

The within complaint relates to public holiday entitlements in respect of 31st October 2022. The complainant was on call on the day in question and was paid for the day and received the additional on call allowance of €210 for the week on call. The complainant was not required to attend work on the day.

The Applicable Law

Section 21 of the Organisation of Working Time Act, 1997 provides as follows:

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:

Definitions of Working Time

Article 2(1) of Directive 2003/88/EC defines working time as follows:

“working time” means any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice.

Section 2(1) of the Organisation of Working Time Act, 1997 defines working time as follows:

"working lime " means any time that the employee is

(a)     at his or her place of work or at his or her employer's disposal, and

(b)     carrying on or performing the activities or duties of his or her work,

and "work" shall be construed accordingly.

Conclusions

Having considered the submissions of the parties to this complaint, I find that the complainant received the appropriate public holiday entitlement and on call payment in respect of 31st October 2022. As he was not required to attend at the workplace on the day in question, he was not working, and I therefore find that no further entitlements in respect of the public holiday are due to him.

Having considered the submissions of both parties, I find that the complaint is not well founded.

Public holiday entitlements