Complainant

Respondent

Parties

Sinead  Whelan

St. Josephs School.

Complainant

Respondent

Anonymised Parties

Representatives

  In person.

Lorcan Maule, Mason Hayes and Curran

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-00054566-001

19/01/2023

The Respondent is a special national school catering for approximately 92 children with complex intellectual disabilities ranging from mild to profound. The school has a total of 18 teachers including the principal and 25 Special Needs Assistants.

The Complainant has been employed by the Respondent as a Dance Instructor since 1 September 2001 and works 5 hours every Monday during school term time.

This complaint was received by the Workplace Relations Commission on 19th January 2023.

Timeline of events.

1.       7th November 2022 – The Complainant brought the issue of annual leave entitlement to the attention of the school principal. He said he was aware of this issue as it had occurred with other staff but he would bring it to the attention of the board of management, at this point the Complainant requested a meeting with someone from the board to try and resolve this issue and wanted the board to know she was available to talk. The principal said there was no need as he would convey all this to the board.

2.       21st November 2022 - the principal informed the Complainant that the board would look into it and revert back to her.

3.       19th December 2022 - there was still no response from the board, the principal instructed the secretary to pay the Complainant holiday entitlement for the Christmas period.

4.       Upon receiving legal advice, the Complainant lodged a complaint with the WRC (Inspection).

5.       19th January 2023 - The Complainant withdrew her complaint to WRC lnspection service and made a complaint to WRC Adjudication Service.

6.       When the Complainant returned to school the principal informed her that he had correspondence from the WRC and stated that the board would need more time to respond. The Complainant’s opinion is, because the board were dealing with a bigger issue her issue was being ignored. 

7.       13th March 2023 The Complainant went to the principal to get confirmation about a date (19th June 2023) for an Irish Dancing Feis so she could inform her other school. The principal was very hostile and informed the Complainant that she would have to request confirmation from the board of management.  In 22 years running this feis for the children the Complainant has never had to go to the board for confirmation. The principal then informed the Complainant he had received a phone call from the WRC. He went on to inform her that they were not recognizing the circular as she was not a teacher in the classroom, a remark the Complainant found very insulting as she had been teaching the children in the hall for 22years and as per her payslips she is classified as a part-time teacher. The principal was very aggrieved that his name was on the complaint to the WRC, he stated that he didn't employ the Complainant, it was the board of management. The Complainant had no contact details for the board of management (and still has no details) and the principal was her point of contact and he told her everything had to go through him. 

8.       30th March 2023 – The Complainantreceived an email from WRC stating that the principal had asked for a face-to-face mediation meeting to try to resolve the complaint.

9.       20th April 2023 – The Complainant received an email from WRC confirming that her case cannot be resolved by mediation.

The consequences of the employer taking no action to rectify this matter.

1.       Because the Complainant’s employer will not recognize the circular depicting the rate of pay and rate of annual leave it has the following implications for her.

2.       The Complainant’s wage has  remained the same for the past 22 years.

3.        Until 28/12/2022 the Complainant has never received holiday pay.

4.       Because the rate of wage remains the same the Complainant has been assessed by social welfare at a lower rate of entitlement and so loses out on payments. 

5.       Because the Complainant’s employer stated on social welfare forms that she was receiving holiday pay she did not get social welfare payments for these periods. 

6.       The first time Certificate of Holiday Entitlement Part (A) was completed by her employer was December 2022.

7.       Prior to December 2022 Certificate of Holiday Entitlement Part (B)was completed by my employer despite the cessation of " rolled up holiday pay" with effect from the commencement of the 2015/2016 school year.

8.       The Complainant contends that she lost out on 4 weeks holiday pay per year, she has lost out on 4 weeks social welfare payments per year, she has lost out on average 12 weeks social welfare payments at a reduced rate. See SW19 Working age income supports.

9.       The Complainant is unsure of any consequences relating to old age pension.

The Complainant has brought a claim to the WRC under the Organisation of Working Time Act,1997. 

It appears that the Complainant’s primary claim is that she has not been paid for holiday pay and that it is “illegal” for her holiday pay to be rolled up. The Complainant refers to the Department of Education circulars, however the Complainant is not a teacher and the Department of Education circulars do not apply to the Complainant. The claims are denied.

The Complainant’s version of events as set out in her WRC complaint form is very much in dispute. 

BACKGROUND

1.       The Respondent is a special national school catering for approximately 92 children with complex intellectual disabilities ranging from mild to profound. The school has a total of 18 teachers including the principal and 25 Special Needs Assistants.

2.       The Complainant has been employed by the Respondent as a Dance Instructor since 1 September 2001 and works 5 hours every Monday during school term time.

3.       The Complainant is a privately paid employee and is not a primary school teacher nor is a teacher for the purposes of Department of Education circulars and therefore Department of Education circulars have no impact on the Complainant’s employment.

4.       From March 2020 to 7 November 2022, the Complainant was laid off due to the covid pandemic and restrictions that were in place in Special Schools. The Complainant was in receipt of her full weekly salary (€110) during this period and was not required to attend work.

5.       During school holidays the Complainant applies to the Department of Social Protection for Jobseeker’s benefit allowance. For each period of vacation, the Complainant is required to provide a form to the Department of Social Protection where the Employer declares the arrangement with the employee.

6.       The Complainant, as part of her employment, is paid a generous salary. Included in her week’s salary is the fact that her hourly rate of pay has been increased to take into account of holiday entitlements. Furthermore, the School pays the liability of any employee taxes (PAYE, PRSI, USC) that the Complainant may accrue.  The School has kept a copy of the Employer’s Declaration which clearly states that that the Complainant’s hourly rate of pay has been increased by 8% to take into account of her holiday entitlements.

7.       On 7 November 2022, the Complainant approached the principal and requested that her holiday pay be unrolled and referred to a Circular 0015/2015. Circular 0015/2015 relates to casual and non-casual teachers. A qualified teacher is registered by the Teaching Council and is required to teach the Primary School curriculum. The Complainant is not a teacher nor is she registered with the Teaching Council. The Complainant does not teach the curriculum nor is she considered as part of the Teaching staff of the school. The Complainant is hired to teach a dance class as an activity for the pupils of the school. Therefore Circular 0015/2015 does not apply to the Complainant’s employment.

LEGAL ARGUMENTS

Preliminary issue/Time Limits

1.       It is respectfully submitted that the jurisdiction of the Workplace Relations Commission (“WRC”) to investigate a complaint extends to the reckonable period of 20 July 2022 to 19 January 2023 only in accordance with Section 41 (6) of the Workplace Relations Act 2015 wherein it provides:

“…….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”; (emphasis added)

2.       The WRCs Complaint form in this case was filed on 19 January 2023. The Complainant in her complaint form states that she returned to work on 7 November 2022 having been laid off due to the covid pandemic (March 2020 to November 2022). The Complainant states that she was informed by the social welfare office that she would not be paid for the first two weeks as her holiday pay was rolled up in her salary. It is presumed that the holiday that the Complainant refers to is the summer period and therefore would have been in contact with the social welfare office in June 2022.

3.       The Complainant, in an undated letter stated, that she is seeking payment of holiday pay to be backdated for seven years. It is submitted that that the claims within this referral to the WRC are outside the reckonable period and, respectfully, that the Workplace Relations Commission lacks jurisdiction in relation thereto.

4.       The Complainant has not submitted an application for an extension of time. However, if such application is made it will be resisted by the Respondent due to the fact that the Complainant has failed to show reasonable cause as per section 41(6) of the Workplace Relations Act 2015 Act.

5.       The Respondent relies on the test set out in in Cementation Skanska v. Carroll as the appropriate test to apply in relation to an extension of time application on the part of Complainant.  This test is as follows:

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence, there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he or she would have initiated the claim in time. The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons.

It is therefore for the Appellant to both explain the delay and demonstrate that the delay arose for reasonable cause.”(Emphasis added)

6.       This test is stated in Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30.  The Respondent relies thereon and submits that no reasonable cause exists.

7.       If the Complainant tries to rely on the fact that she was engaging with the Respondent during her employment. The Respondent will rely on the recent Labour Court decision of Ms Michele Hanley v Board of Management, Scoil Mhuire Gan SmalPWD231, where the Court stated: 

Counsel submitted that there were grounds that constituted reasonable cause for such an extension: firstly, the fact that the Complainant was at all material times engaging with the Respondent in an effort to resolve the dispute between them and secondly because of the prevalence of Covid-19. The Court considered Counsel’s application and declined it. It is the well-established view of the Court that a would-be complainant is not in any way inhibited - by virtue of ongoing discussions with their employer – from referring a statutory complaint to the Workplace Relations Commission within the statutory timeframe for so doing, for the purposes of ‘stopping the clock’. The complaint can be withdrawn if the parties to the dispute succeed in resolving the dispute, the subject of the complaint, between themselves. (emphasis added)

Organisation of Working Time Act 1997 – “Working Time”

1.       Without prejudice to the Respondent’s substantive defence, the Respondent notes that the Complainant was laid off between March 2020 to November 2022. Furthermore, the Respondent notes that the Complainant has exhibited a payslip dated 28 December 2022 and notes that she was paid accordingly for Holiday pay, approximately €140.80.

2.       It is submitted that this payment was for the period September 2022 to December 2022, despite the Complainant only worked two months during this period.

3.       The Respondent submits that the Complainant is not entitled to any annual leave during the period March 2020 to November 2022 as the Complainant was laid off due to the Covid pandemic and was not working.

4.       Under section 2 of the Organisation of Working Time Act 1997, “working time” and “work” is provided with the following definition:

“working time” 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

5.       Section 19 of the Organisation of Working Time Act 1997 provides the following:

19. Entitlement to annual leave

(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

6.       It is submitted that the Complainant does not meet the above entitlement to annual leave due to the Complainant being on a period of lay off and was not working within the meaning of the Act. Therefore, the Complainant’s complaint to the WRC is outside of the reckonable period and even if the Adjudication Officer was to extend it to 12 months.

“Rolled-up” Holiday Pay

1.       “Rolled-up” holiday pay, under which employees are given additional payment during the weeks that they work in respect of holiday periods rather than receive a separate payment when they go on holiday, has been used by employers for temporary, seasonal or shift workers.

2.       It is denied that the Respondent has acted in an unlawful manner or has ignored its obligations under the Organisation of Working Time Act.

3.       In Lyddon v Englefield Brickwork Ltd[1], when the employee commenced employment, he was told his daily rate of pay would include holiday pay. The employee had no written contract and no detail was given as to his rate of holiday pay or as to how it was calculated. The employee was paid weekly by cheque with a computer-generated payslip, which showed the amount of basic wage, holiday pay added, deductions made due to tax and the net amount owing. The English Employment Appeals Tribunal upheld the requirement of the arrangement being “transparent and comprehensible”. It was noted “the fundamental question is whether there is a consensual agreement specifying a specific sum properly attributable to periods of holiday”. That requirement was met.

4.       It is submitted that the Complainant was always aware of the arrangement. At each school holiday the Complainant would request the School to sign an employer declaration so that the Complainant could seek job seeker benefit. It is clearly stated that on said form that the holiday pay arrangement is clearly indicated and that the Complainant’s salary states that her salary is rolled up by 8%.

5.       The Complainant has also stated that the Department of Social Protection informed her that she was unable to receive two weeks of job seekers benefit at the start of the summer holiday due to her holiday pay being “rolled up”. It is the Respondent position the two weeks without job seekers benefit is in recognition of the Complainant’s annual leave entitlement. 

6.       The Complainant would have to lodge these government forms to the Social Welfare office and it is inconceivable that the Complainant only realised during the summer of 2022 of this matter. The Complainant signing on each holiday period goes back to the commencement of the Complainant’s employment in 2001.

Conclusion.

1.       Without prejudice to the foregoing, the Complainant was paid for annual leave during the period 20 July 2022 to 19 January 2023. From 20 July 2022 to November 2022 the Complainant was laid off, however notwithstanding the Respondent paid her full holiday entitlement on 28 December 2022. 

2.       Separately the Respondent states that the act of rolled up pay is lawful where the arrangement is regarded as being “transparent and comprehensible”.

This complaint, received by the Workplace Relations Commission on 19th January 2023, contains one complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

The Organisation of Working Time Act 1997 is:

An Act to provide for the implementation of Directive 93/104/EC of 23rd November 1993 of the Council of the European Communities concerning certain aspects of the Organization of Working Time, to make provision otherwise in relation to the conditions of employment of employees and the protection of the health and safety of employees, to amend certain enactments relating to employees, to repeal the Conditions of Employment Acts, 1936 and 1944, the Holidays (Employees) Acts, 1973 and 1991, and certain other enactments and to provide for related matters. [7th May 1997]

Sections 19 of the Act covers the entitlement to annual leave.

Section 19 of the Organisation of Working Time Act 1997 provides the following:

19. Entitlement to annual leave

(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

In the instant case clause (c) is applicable.

Section 27 of the Act relates to the making of complaints to a rights commissioner. Sections 27 (4) and (5) read as follows:

27 (4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

27 (5) Notwithstanding subsection (4), a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) ( but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.

The complaint was registered with the Workplace Relations Commission on 19th January 2023. The cognisable period under the Act was the six month period ending on 18th January 2023 i.e. 18th July 2022 to the 18th January 2023. During this period the Complainant was on lay-off due to Covid until 7th November 2022. In December 2022 (ref payslip dated 28th December 2022) the Complainant received €140.80 holiday pay.

I believe that the Complainant received her holiday pay entitlement for the cognisable period and therefore I must conclude that the complaint as presented under the Organisation of Working Time Act 1997 is not well founded.

I believe that the Complainant received her holiday pay entitlement for the cognisable period and therefore I must conclude that the complaint as presented under the Organisation of Working Time Act 1997 is not well founded.

Holiday entitlement; Organisation of Working Time Act 1997.