Complainant

Respondent

Parties

Noel  Kelly

Go Ahead Transport Services (Dublin) Limited

Representatives

  Self

 David Horgan, Stratis Consulting Ltd

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-00060278-001

28/11/2023

The Complainant is employed as a driver with the Respondent since 10/12/2022.  He is paid €729.19 gross per week and works a 39-hour week.  The Complainant booked two weeks annual leave from 04/06/2023 and he was not paid in advance and submits that this is in breach of the Organisation of Working Time Act, 1997. The Complainant also disputes the manner in which the Respondent calculates his holiday pay.  The Respondent submits that the Complainant was paid in line with the process then in place.  This process has now changed.  The Respondent also changed the manner in which holiday pay was calculated and the Complainant’s complaint is encompassed by this change.

The Complainant gave evidence on affirmation that he commenced employment with the Respondent as a bus driver on 10/12/2022.  In June 2023 he applied for two weeks annual leave, and this was scheduled to commence on 04/06/2022.  The Complainant did not receive any holiday pay in advance and so he was unable to travel as he had  planned.  He wanted to have his annual leave reset but this was not facilitated, and he was advised that it was the Respondent’s policy to pay wages on a back week basis and this included holiday pay.  The Complainant submits that this is in breach of  Section 20(2) of the Organisation of Working Time Act, 1997 and as outlined in S.I. No 475/1997 which sets out the regulations for the determination of pay for holidays.

He is seeking compensation as a result of the failure of the Respondent to comply with the provisions of the Act.

The Complainant submits that the decision in the case of ADJ-00026200 is relevant to his case as the employee in that case was paid compensation due to a similar breach of the Act.

The Complainant also submits that the Respondent does not calculate holiday pay correctly and this is in breach of Section 20 (2) (b) Organisation of Working Time Act, 1977 and not in line with the provisions outlined in S.I. No. 475/1997, Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997, (3) (3) (a).

At the hearing the Complainant noted that he was not aware of the collective agreement outlined by the Respondent as he is not a member of the trade union.  The Complainant noted that the anomaly in relation to calculation of holiday pay was now sorted and he was not seeking any compensation in relation to this.

The Respondent’s representative submitted that when the Complainant requested his annual leave in June 2023 the policy at that time was for all employees to be paid on a back week basis and this included holiday pay.  The Respondent acknowledges that this is in breach of Section 20(2) of the Organisation of Working Time Act, 1977.  The Respondent has recently concluded a collective agreement with the trade union that holiday pay can be paid in advance to any employee who wants this. 

Ms Olivia Lawlor gave evidence on affirmation and confirmed that the Complainant did take his annual leave as requested and she also confirmed that he continued to be paid on a weekly basis during that time.  The Complainant was not at any financial loss and did not suffer any detriment because of this.

In relation to the calculation of holiday pay the Complainant’s contract states that “payment of a week’s holiday will be based on the average rostered hours on your personal rota worked over the last 13 weeks”.  The Respondent uses a system known as “DAS” to track each employee’s personal rota and this is then used by the payroll system to calculate holiday pay entitlement on an average of the preceding 13 weeks.

There are several allowances paid to bus drivers and details of these were outlined in the Respondent’s written submission.  At the hearing the Respondent confirmed that one of the allowances known as the “Depot Payment” which is a daily payment of €16.08 when the drivers are required to stay in the Depot on certain specific shifts was not included in the calculation and this anomaly is now sorted.

The applicable Law:

Section 20 (2) of the Organisation of Working Time Act, 1977, provides:

“(2) The pay in respect of an employee’s annual leave shall –

       (a) be paid to the employee in advance of his or her taking the leave,

      (b) be at the normal weekly rate or, as the case may be, at a rate which is appropriate to the    

      normal weekly rate, and

     (c) [….]”

It is not disputed that the Complainant was not paid in advance for his two weeks annual leave in June 2023.  This was because of the Respondent’s practice at that time to pay all employees on a back-week basis.  As the Respondent now has a collective agreement in place this matter is rectified.  The Respondent confirmed at the hearing that all employees will be notified of this change given that the Complainant (and possibly others) are not members of the trade union.

Calculation of pay for holidays:

Section 3 of S.I. No. 475/1997 – Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 provides:

“3. (1) The normal weekly rate of an employee's pay, for the purposes of sections 20 and 23 of the Act (hereafter in this Regulation referred to as the "relevant sections"), shall be determined in accordance with the following provisions of this Regulation.

(2) If the employee concerned 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.”

In relation to this aspect of the complaint (the calculation of holiday pay) the Respondent has confirmed that the “Depot Pay” will now be included in the calculation of holiday pay and the Complainant has confirmed that this resolves this matter.

In relation to compensation Section 27 of the OWTA empowers an Adjudication Officer to do one or more of the following:

“(a) declare that the complaint was or, as the case may be, was not well founded,

 (b) require the employer to comply with the relevant provision,

 (c) require the employer to pay to the employee compensation of such amount (if any) as is just and

 equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in  respect of the employee’s employment.”

This complaint is well founded, and I note that the Respondent has confirmed its compliance with the provisions of the Act and with the provisions outlined in S.I. No. 475/1997 and in that context, it is not necessary to require the Respondent to comply with the relevant provisions.

I note that the Respondent submits that the Complainant has not suffered any detriment as a result of this matter.  The relevant section in the Act does not stipulate that there is a requirement for a Complainant to show that there was a detriment.  I require the Respondent to pay the Complainant compensation in the sum of €1,500 which I believe is just and equitable.  I require that this sum is paid to the Complainant within 42 days of the date of this decision.

I have decided that this complaint is well founded, and I order the Respondent to pay the Complainant compensation in the sum of €1,500 within 42 days of the date of this decision.

Holiday pay – advance payment and method of calculation.