DWT243

PARTIES:

DIVISION:

SUBJECT:

 Appeal of Adjudication Officer Decision No's: ADJ-00035191 (CA-00046249-002).

BACKGROUND:

The Worker appealed the Adjudication Officer's Decision to the Labour Court on 9 February 2023. A Labour Court Hearing took place on 18 January 2024. The following is the Labour Court's Determination:

DECISION:

This matter comes before the Court as an appeal by Brendan Dowling (the Complainant) of a decision of an Adjudication Officer (CA-00046249-002) given under the Organisation of Working Time Act 1997 (the Act) in his complaint against Carlow County Council (the Respondent). The Adjudication Officer found that the complaint was not well founded.

Factual background

The Appellant alleges that the Respondent has undercalculated payment to him for Public Holidays worked by him throughout the period of his employment. He contends that the Respondent has failed to include regular rostered overtime which he works in the calculation of his pay for public holidays.  He also seeks to have the calculation of pay for public holidays include an on-call payment which he receives two weeks out of four when he is on call. The on-call allowance is paid only on those weeks when the Appellant is on call.

The Complainant is seeking retrospective payment of the shortfall. The Complainant in oral submission at the hearing sought retrospection to 2010 and in his written submission sought retrospection to March 2012.

The Complainant referred his complaint to the Workplace Relations Commission on 15th September 2021 and, therefore, according to the Act, the cognisable period for the within complaint is 16th March 2021 to 15th September 2021.

It appears to be common case that in the period he was on-call every second week for a week at a time.

Summary of the Appellant’s Submission

It is submitted on behalf the Complainant that he should have received payment in respect of all public holidays that have fallen since 2012 at a rate based on his full or normal rate of pay (i.e. a rate that includes his regular and predictable overtime and on-call allowance). He is seeking full retrospective payment of the difference between what he has actually been paid for public holidays and what he submits he ought to have been paid, plus compensation for the Respondent’s failure in this regard. The complaint is predicated on a detailed analysis of CJEU jurisprudence in relation to the Working Time Directives.

Summary of the Respondent’s Submission

The Respondent submits that the within claim in relation to the calculation of pay for public holidays, as formulated by the Appellant, is misguided, as pay for public holidays is a matter entirely comprehended by national law and not a matter that is within the scope of the Working Time Directives. The Respondent further submits that the cognisable period for the claim is 16th March 2021 to 15th September 2021 and that the Appellant has been correctly remunerated in accordance with SI 475 of 1997 for all public holidays that fell in that period.

The Law

Regulation 3(2) of S.I. No. 475/1997 - Organisation of Working Time (Determination of Pay For Holidays) Regulations, 1997 – provides:

3(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.

Regulation 5 of SI 475 of 1997 provides:

5. Relevant rate for employees (other than certain categories of job sharer)

(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, or

(ii) if no time was worked by the employee during that period, the period of 13 weeks ending on the day on which time was last worked by the employee before that public holiday.

(2) If the employee concerned (not being an employee to whom paragraphs (a), (b) and (c) of Regulation 6 of these Regulations apply) does not work on a day which is a public holiday, then—

(a) in the 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 one-fifth of 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 in respect of the normal weekly hours last worked by the employee 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 one-fifth of the average weekly pay (excluding any pay for overtime) of the employee calculated over—

(i) the period of 13 weeks ending immediately before that public holiday, or

(ii) if no time was worked by the employee during that period, the period of 13 weeks ending on the day on which time was last worked by the employee before that public holiday.

Provided that the relevant rate to which the employee concerned shall be entitled under this paragraph in respect of a public holiday shall not exceed the relevant rate to which he or she would be entitled in respect of that holiday if subparagraph (a) or (b), as the case may be, of paragraph (1) of this Regulation were to apply to him or her.

Discussion

This Court in DWT2329 Kilkenny County Council v Brian McEneaney, cited with approval the decision of this Court in DWT0895 MCM Security Limited and Tom Power and decided as follows:

It is clear from the wording of Regulation 3(2) and Regulation 5 of SI 475 of 1997 that pay in respect of overtime is not reckonable in the calculation of pay for public holidays. The Regulation makes equally clear that allowances (but not expenses) are reckonable.

This Court in the within appeal adopts the reasoning in DWT2329 and concludes that the on-call allowance paid to the Appellant should be included in the calculation of pay for public holidays.

The Court is satisfied, having regard to section 41 of the Workplace Relations Act 2015 (and the fact that the matter of public holiday benefits is entirely a matter of domestic law), that the cognisable period for the within claim is 16th March 2021 to 15th September 2021.

Decision

The Court therefore orders that the calculation of pay for public holidays should include a reckoning of the on-call allowance which is received by the Appellant every two weeks with effect from 16th March 2021.

In addition, the Court awards compensation in the amount of €750 to the Complainant for the breach of the Act. The decision of the Adjudication Officer is set aside, and the appeal succeeds.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
TH	______________________
7 February 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.