Complainant

Respondent

Parties

Garrett  Cullen

Musgrave Operation Partners Ireland Supervalu

Representatives

Ken Reilly Mandate Trade Union

Niamh Daly IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00058086-001

03/08/2023

The Complainant commenced employment on 25 January 1999 with the Respondent in the role of “Sales Assistant”.

This complaint was received by the Workplace Relations Commission on 3rd August 2023.

Background

·       The Member has worked in his place of employment since 25th of January 1999 without incident. 

·       The Member works 42. 5 hours every week\ which is broken down into 8. 5 hours per day, 5 days per week.

·       The Member works every Monday.

·        In February 2023, the Member received his payslip and noticed he had only received 8 hours pay for the 6th of February, the newest Public Holiday.

·       This Member was not the only member with this issue and along with 2 other Members, lodged a Collective Grievance with the Store Manager, Supervalu Finglas, Mr Paddy O'Connor, on the 18th of February 2023.

·       In this grievance it was made clear to the Company that our position is that the worker should not be at a loss when a public holiday falls on a day they normally work and therefore the Company has made payment in relation to a public holiday in a manner that is contrary to the legislation.

·       Mr 0'Connor issued his outcome to the Collective Grievance on the 9th of March 2023 and found in favour one of the signees, and not in favour of the other two, one of whom is before you today.

·       The reason given for the member Mr O'Connor found in favour of was a processing error.

·       The reason given" for upholding the amount of 8 hours paid to this member was that overtime was not applied.

·       This outcome was appealed on the 22nd of March 20236 to Ms Jessica Maher, MOPI Regional HR Manager, by the two remaining Members.

·       A meeting took place on the 14th of April 2023 with Ms Maher, the two Members, and the Mandate Union .

·       At this meeting it was made clear to Ms Maher that this Member works 8. 5 hours per day, including every Monday, however whenreceiving payment for a public holiday, the payment is for 8 hours, resulting in a loss.

·       On the 17th of May a follow up meeting was held between Ms Maher, both Members, and their Union Official, however this meeting was predominantly for clarification around the other member's contract. It was reaffirmed to the Company at this juncture that the Member here today works 8 and a half hours every single day, as per contract, but only receives 8 hours pay when a Public Holiday falls on a day on which he usually works.

·        It was made clear to the Company representative at this meeting that the claim was now inclusive of 5 Public Holidays, namely the 6th of February, 17th of March, 10th of April, 1st of May and the 5th of June.

·       The Company issued the outcome on the 14th of June 2023 and upheld the original outcome of the Store Manager, believing payment of 8 hours to be correct.

·       This outcome letter confirmed that it is the final stage of the internal appeals process, and this Office duly referred the case to the WRC on the 3rd of August 2023 under the Payment of Wages Act, 1991.

Union Argument

·       The Payment of Wages Act 1991, Section, as amended, defines an employee as: "a person who has entered into or works under a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer."

·       It goes on to particularise wages as: "wages, in relation to an employee, means any sum payable to the employee by the employer in connection with his employment, including - (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise."

·        Section 5 of the Act provides that: 5. -(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless - (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it.

·       Subsection (6) further provides that: 6. - Where-

(a)    the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making deductions therefrom that fall to be made and are in accordance with this Act), or

(b)    none of the wages that are properly payable to an employee by an employer on any occasion (after making such deductions as aforesaid) are paid to the employee, Then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

·       In Sullivan v Department of Education [1998] E. L. R. 217 the Tribunal took the word "payable" to mean "properly payable", consequently it was not simply a matter of what may have been paid from the outset but all sums to which an employee is properly entitled. Therefore, it is contended that the Company has failed in this instance to pay the Member's wages, which were properly payable to them.

·       The Company, in both the outcome and appeal outcome are reliant on Section 5 (1) of the Organisation of Working Time Act in arriving at their decision.

·       In the Appeal Outcome letter, dated 14th June,  the Company refer to which states: "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'

·       This worker works 8 and a half hours every day, on this point there is no dispute. Therefore, the "normal daily hours last worked by him before that public holiday" are 8 and a half hours.  and a half hours is the "normal daily hours" not only on the day before each of the public holidays, but it is the "normal daily hours" every single day.

·        Section 4 of the same Act relied on by the Company states: "Appropriate Daily rate of pay- ("the relevant rate")  the following, namely - (a) the rate at which an employee is paid in respect of a day off under Section 21 of the Act (b) the rate of an employee's additional day's pay under that section, and ' (c) the Appropriate Daily rate of the employee's pay for the purposes of section 23 of the Act

·        It is in fact subsection 6, of Section 21, as referred to in Section 4 of the Act relied upon by the Company, that clarifies the above. Section 21, (6) of the Organisation of Working Time Act 1997 states: "(6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work."

·       The definition of overtime according to the Cambridge English Dictionary" is: "time spent working after the usual time needed or expected in a job."

·        According to Britannica it is defined as: "time spent working at your job that is in addition to your normal working hours.'

·       With this in mind, whether the Company choose to pay this as overtime or not, the Member should be at no loss of income on foot of receiving a paid day off in lieu of a Public Holiday.

Conclusion

·       In view of the forgoing, we respectfully request that you find the Members case to be well founded and declare that the Company breached the Payment of Wages Act, 1991 and accordingly, direct the Company to pay the Member the pay which is just and equitable in all of the circumstances. The total claim by the member for this period of time is €60.53.

Background to the claim

·       The Complainant commenced employment on 25 January 1999 with the Respondent in the role of “Sales Assistant”

·       On 18 February 2023, the Complaint submitted a grievance in relation to payments for public holidays.

·       The first stage of the grievance was heard by the Store Manager and the outcome dated 9 March was issued to the Complainant. The grievance was not upheld for the reasons outlined.

·       The Complainant appealed the outcome which was heard by the Regional HR Manager on 17 May 2023. The Complainant was represented at the meeting by Mr. Ken Reilly, Mandate Union Official. The Complainant’s grievance appeal was not upheld, and the outcome was issued to the Complainant by letter dated 14 June.

·       The complaint was submitted to the Workplace Relations Commission (WRC) on 3 August 2023. In correspondence to the WRC, the Complainant’s representative Mr Reilly confirmed that the dates the payments relate to are;

Ø  7 February 2023

Ø  17 March 2023

Ø  10 April 2023

Ø  1 May 2023

Ø  5 June 2023

Respondent’s position:

·       The Complainant is arguing that there was a deficiency in payment of his wages. The Payment of Wages Act, 1991, under section 5(6) states:

“Where (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion, […] then […] the amount of the deficiency […] shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

·       Thus, the important element to establish is what were the wages “properly payable” to the Complainant. The Respondent contends that the wages “properly payable” to the Complainant were the wages paid to him on the respective pay dates.

·       It is the Complainant’s position that he is entitled to overtime payment to be included in his statutory public holiday entitlement. The Respondent paid the Complainant an additional day of pay for public holidays of 8 hours. On a normal day that is not a public holiday, the Complainant works 8 hours normal time and 1 hour overtime.

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

 “In respect of a public holiday the employee is entitled to whichever of the following his/her employer determines,

• A paid day off on that date

• A paid day off within a month of that date

• An additional day of annual leave

• An additional day of pay”

The definition of a day’s pay is as set out in the Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997, as follows:

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) 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

·       Therefore, in accordance with Section 5(1)(a) overtime is excluded when determining daily pay for Public Holiday entitlement.

·       In claims taken under the Organisation of Working Time Act, the Labour Court has previously addressed the issue of the non-inclusion of overtime in the calculation of public holiday pay. In the case of MCM Security Limited v Tom PowerDWT0895, the Court stated:

“It is clear from the wording of both Regulation 3(2) and Regulation 5(1) that payment in respect of overtime is not reckonable in the calculation of pay for either annual leave and public holidays.”

·       This was also considered by the Labour Court in the recent case of Bausch Health Ireland v Daniel Hayden DWT2314wherein the Court found “It is clear to the Court that the Regulations expressly excludes any pay for overtime from the calculation of “an additional day’s pay” in determining payment for a public holiday.”

·       Further cases where this issue has been considered by the Court are Waterford City and County Council and Ross Skelly DWT239, Waterford City and County Council and Michael Malone,  DWT2232, Waterford City and County Council and Robert Bible DWT231, and Waterford City and County Council and Mathew Runciman DWT232. In each of the cases, the Court found that“it is clear to the Court that S.I. 475/1997 expressly precludes any pay for overtime from the calculation of ‘an additional day’s pay’ in determining payment for a public holiday.”

·       This instant claim before the Adjudicator is taken under the Payment of Wages Act. The Respondent submits that no deduction as defined in Section 5 of the Act has been made. Any deduction made to the Complainant’s wages were made in accordance with Section 5 of the Act, namely deductions required by virtue of statute, and are thus lawful deductions.

·       The Respondent contends that no breaches of the Payment of Wages Act have occurred. All wages have been paid in full and no unlawful deductions have occurred.

Conclusion:

The Adjudicator is respectfully requested, based on the Respondent’s submission and the evidence adduced herein, to find that the breaches claimed did not occur and to find in the Respondent’s favour.

The answer to the question raised in this complaint is to be found in The Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997 (S.I. No.475 / 1997).

The Representative for the Respondent has quite clearly stated the following:

The definition of a day’s pay is as set out in the Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997, as follows:

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) 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

·       Therefore, in accordance with Section 5(1)(a) overtime is excluded when determining daily pay for Public Holiday entitlement.

In applying the law to the question, I am unable to find fault with the Respondent’s argument. It is on this basis I feel I have no alternative but to conclude that the complaint as presented is not well founded.

In applying the law to the question, I am unable to find fault with the Respondent’s argument. It is on this basis I feel I have no alternative but to conclude that the complaint as presented is not well founded.

Public Holiday entitlement;