ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00047567

Parties:

	Complainant	Respondent
Parties	Cora Flynn	Musgrave Operation Partners Ireland Supervalu

	Complainant	Respondent
Parties	Cora Flynn	Musgrave Operation Partners Ireland SuperValu

Representatives

Ken Reilly Mandate Trade Union

Niamh Daly IBEC

Complaint(s):

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00058085-001	03/08/2023

Date of Adjudication Hearing: 08/04/2024

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 to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

This complaint is about how payment is calculated for a public holiday. The Company includes the payment of rostered overtime in annual leave calculations. This is consistent with a recent Labour Court decision in Eamonn Ryan v Carlow County Council (DWT2312) where the Court determined that:

“in this case that overtime is regular, and predictable and that the corresponding pay, constitutes a significant element of his total remuneration. Therefore, it should be included as normal remuneration due under the right to paid annual leave.”

However, it has not been determined that rostered overtime should be included in Public Holiday calculation arising from the fact that statutory leave is underpinned by CJEU case law while Public Holidays are not. It follows that National Law determines how a Public Holiday should be calculated. However, in this case where the National Law which is the Organisation of Working Time Act 1997 at section 21 states that Public Holiday entitlement can be (c) an additional day of annual leave, does it then logically follow that a Public Holiday must be calculated as an Annual Leave Holiday to include rostered overtime?

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,

(d) an additional day’s pay:

The Company does pay the normal daily rate inclusive of rostered overtime when calculating annual leave entitlement.

The Complainant worked fixed hours. On a normal workday the Complainant works an 8.5-hour day and receives an overtime rate for the .5 of an hour worked.

The Respondent paid the Complainant an additional day of pay for public holidays exclusive of rostered overtime and paid 8 hours.

The Complainant states that for the Public Holiday falling on the 6th of February she received 8 hours pay when she worked 8.5 hours each working day.

This claim is brought under the Payment of Wages Act and relates to 6th of February 2023, 17th of March 2023, 10th of April 2023, 1st of May 2023 and the 5th of June 2023 and the failure to pay the .5-hour rostered overtime worked on these days. The claim was lodged with the Commission on the 3rd of August 2023. The total amount claimed is €69.03.

Summary of Complainant’s Case:

The Company does pay rostered overtime when calculating annual leave. The Labour Court has also accepted that rostered overtime should be included when calculating annual leave entitlement. By extension that must mean that a Public Holiday should be calculated in the same way.

Summary of Respondent’s Case:

The crux of this dispute is that the Act prescribes that the rate of pay for a public holiday shall be determined in accordance with regulations made by the Minister: S.I. No. 475/1997 - Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997.

That Regulation at 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,

Based on the regulation there is no entitlement to rostered overtime hours when calculating Public Holiday entitlement.

Findings and Conclusions:

Hogan J. in HSE v John McDermott [2014] addressed the meaning of section 6(4) of the Payment of Wages Act relating to the time to present a claim as amended by section 41(6) of the Workplace Relations Act 2015:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The construction of s. 6(4) of the 1991 Act

12. It is at this point that we can return to the construction of the relevant language of s. 6(4), namely, *within the period of 6 months beginning on the date of the contravention to which the complaint relates*. The first thing to note is that no special meaning has been ascribed to the word *contravention* by the 1991 Act, so that it must be given its ordinary, natural meaning.

13. We may next observe that the actual language of the sub-section is clear, because it is the words *contravention to which the complaint relates* which are critical. It may be accepted that every distinct and separate breach of the 1991 Act amounts to a *contravention* of that Act. If, for example, an employee is paid monthly and the employer makes unlawful deduction X in respect of salary for every month in a two year period it might be said in the abstract that there have been 24 separate *contraventions* of the 1991 Act during that period.

14. Yet the relevant statutory language takes us somewhat further, because the key question is the *date of the contravention to which the complaint relates.* In other words, time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention *to which the complaint relates.* As the EAT pointed out in its ruling on the matter, had the Oireachtas intended that time was to run from the date of the first contravention, it could easily have so provided.

15. For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three-year period, then provided that the complaint which has been presented relates to a period of six months beginning *on the date of the contravention to which the complaint relates*, the complaint will nonetheless be in time.

16. It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time.

17. It may be that when enacting s. 6(4) the Oireachtas did not fully appreciate that everything might turn for the purposes of time on the actual manner in which the particular complaint was actually framed by the employee, but the language of the sub-section really admits of no other conclusion. Nor can it be said that such a conclusion is absurd in any way

The first contravention is alleged to have occurred on the 6th February 2023 and continued on specified dates. The period of 6 months from the first date of contravention runs from 6th of February to the 5th of August 2023. This means the complaint is in time

This Complainant works 8.5 hours every day. On a Public Holiday she receives payment for 8 hours only. This is based on the interpretation in the Organisation Working Time Act (Determination of Pay for Holidays) Regulations, 1997.

Section 21 of the Organisation of Working Time Act 1997 states:

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:

And section 22 states:

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.

(2) For the purposes of section 21, time off granted to an employee under that section or section 19 shall be regarded as time worked by the employee.

The Respondent stated that an annual leave day is paid at 8.5 hours including the agreed premium for overtime.

And it is to be noted that section 21 in the Act s for (c) an additional day of annual leave, and that by definition must be what a statutory leave day equates to normally in monetary terms. It is accepted case law that rostered hours must be incorporated in annual leave pursuant to ECJ case law and the Labour Court decision in Eamonn Ryan v Carlow County Council (DWT2312) where the Court determined that:

That same reasoning it is argued by the Complainant applies in this case to what payment should be made to a Public Holiday as it is equivalent to an Annual Leave Day and as the Act prescribes that unambiguously at 21(1)(c) that an employee shall be entitled to:

an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—(c) an additional day of annual leave,

However, the Labour Court decision was about statutory annual leave based on CJEU jurisprudence and not Public Holidays.

That Regulation at 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—

( 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,

And section 22 of the Act states that:

(2) For the purposes of section 21, time off granted to an employee under that section or section 19 shall be regarded as time worked by the employee

Several questions now arise since the Employer pays Annual leave inclusive of rostered overtime and the Act at section 21 specifically links entitlement to a Public Holiday as equivalent to a day of Annual Leave. If Annual Leave includes rostered overtime does that mean that a Public Holiday must also include rostered overtime. The alternative means that under section 21 when an extra day Annual Leave is granted for a Public Holiday it does not attract rostered overtime.

Statutory Leave refers to 20 days and any annual leave over and above 20 days does not legally attract payment for rostered overtime hours that are part of the normal shift cycle. They maybe given; however, the entitlement is limited to statutory leave.

It could be argued as a Public Holiday granted as an annual leave day means that it too would be over and above the statutory entitlement and therefore would not attract the rostered overtime element. There is merit in that argument as the inclusion of rostered overtime has been determined by CJEU case law and subsequently followed by National tribunals in so far as it relates to the right under European Law to 20 days annual leave. The counter argument to this position is that the Oireachtas always intended that a Public Holiday would be paid in the exact same way as an Annual Leave Day. If section 21 specifically states that a Public Holiday is in essence equivalent to an Annual Leave Day, it must mean a statutory leave entitlement to include rostered overtime.

For the reasons as detailed I determine the Complaint is not well founded.

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.

It could be argued that a Public Holiday granted as an annual leave day means that it too would be over and above the statutory annual leave entitlement of 20 days or 4 weeks and therefore would not attract the rostered overtime element. There is merit in that argument as the inclusion of rostered overtime has been determined by CJEU case law and subsequently followed by National tribunals in so far as it relates to the right under European Law to 20 days annual leave. The counter argument to this position is that the Oireachtas always intended that a Public Holiday would be paid in the exact same way as an Annual Leave Day. If section 21 specifically states that a Public Holiday is in essence equivalent to an Annual Leave Day, it must mean a statutory leave entitlement to include rostered overtime.

However, on balance the argument favours a limited interpretation of when rostered overtime is included in annual leave calculations. It applies to the 20-day statutory annual leave as a right under European Law and all other annual leave entitlements greater than 20 days or Public Holiday entitlements do not benefit from the inclusion of rostered overtime hours as these days and what should be included is governed by National Law. In this case the National Law excluded overtime from being included in annual leave or public holiday calculations other than whereas of right under European Law 4 weeks annual leave or 20 days statutory leave must include rostered overtime. All other statutory annual leave days or public holidays greater than 20 days statutory annual leave do not attract payment for rostered overtime hours.

For the reasons as detailed I determine the Complaint is not well founded.

Dated: 24-06-24

Workplace Relations Commission Adjudication Officer: Brian Dalton

Key Words:

Public Holidays-Rostered Overtime