DWT249

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00046729 (CA-00057680-001)

BACKGROUND:

The Worker referred his case to the Labour Court on 28 November 2023, in accordance with Section 28(8) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 22 February 2024. The following is the Decision of the Court:

DECISION:

This matter comes before the Court as an appeal by Dermot Flanagan (the Appellant) against a decision of an Adjudication Officer given in his complaint against Dublin Bus (the Respondent) made under the Organisation of Working Time Act 1997, (the Act).

The Adjudication Officer decided that the complaint was not well founded.

Background

The Appellant commenced employment with the Respondent in March 1998 as a bus driver. He went on sick leave from the 9th of September 2022 until 29th of May 2023. During this time, he decided that he did not want to return to work as a bus driver. He returned to work on the 29th of May 2023 and, by agreement, took up the role of First Bus Check Operative. On the 25th of May 2023 the Appellant was issued a formal letter for his new role, confirming the new agreed terms and conditions of employment and that he would now be working on a 30 hour a week contract paid at €583.05 per week.

The Appellant contends that he should have been paid more than his then current normal weekly rate of pay when he took annual leave from the 10th of July 2023 to the 15th of August 2023. He contends that the Respondent should have paid his annual leave at the rate of pay which he was previously paid when he was employed in the position of a bus driver, and before he took on the new role of First Bus Check Operative. He contends that he should be paid the rate of pay which was payable to him at the time he accrued the entitlement to annual leave which he subsequently availed of in July / August 2023.

Summary submission of the Appellant

The Appellant submitted that his entitlement to annual leave accrued throughout the annual leave year, and that he was a bus driver from 9th September 2022 until 28th May 2023.

He contends that section 20 of the Act makes it clear that, following a period of illness, he was entitled to a period of 15 months after the end of the leave year to take the leave he had accrued as a bus driver while out sick. That leave should, according to subsection 2 of S.I. 475 of 1997 have, when he availed of it, have been paid to him at the bus driver rate.

Summary submission of the Respondent.

The Respondent submitted that section 20 of the Act provides that employee shall be paid while on leave at the normal weekly rate of pay. In addition, S.I. Number 475 of 1997 defines a normal weekly rate of pay for the purposes of the Act.

The Appellant was paid his normal weekly rate of pay in accordance with the provisions of the act and in accordance with the terms of the Statutory Instrument at all times.

Relevant Law

The Act at Section 19, provides at the sub-section quoted by the Appellant, as follows:

19(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was—

(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.

At Section 20 of the Act, the subsection quoted by the Appellant makes provision as follows:

20(c)(iii) where the employee—

(I) is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer,

within the period of 15 months after the end of that leave year.

At Section 20(2), the Act, in relevant part, makes provision as follows:

20(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 proportionate to the normal weekly rate, and

At Section 20(4), the Act makes provision as follows:

(4) In this section “normal weekly rate” means the normal weekly rate of the employee concerned’s pay determined in accordance with regulations made by the Minister for the purposes of this section.

Statutory Instrument 475/1997 -Organisation of Working Time (Determination of Pay For Holidays) Regulations, 1997, which are the regulations made by the Minister for the purposes of Section 20 of the Act referred to at Section 20(4), makes provision in relevant part as follows:

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'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.

Discussion and conclusions

The within complaint is founded on the Appellant’s interpretation of the Act at Sections 19 and 20 and of the Regulations contained in S.I. 475 of 1997 - Organisation of Working Time (Determination of Pay For Holidays) Regulations, 1997. The Court however cannot accept that the Act at section 19, which is a section setting out the Appellant’s ‘Entitlement to Annual Leave’, can be interpreted as disapplying the provisions of Section 20 of the Act, which is the section setting out the statutory framework governing ‘Times and pay for annual leave’.

Similarly, the provisions of S.I. 475 of 1997 cannot be set aside in favour of the Appellant’s interpretation of section 19 of the Act when determining the normal weekly rate of pay for the purposes of the Act. A plain reading of section 20(4) of the Act makes clear that the “normal weekly rate” of pay must be determined in accordance with S.I. 475 of 1997, being the regulations made by the Minister for the purposes of Section 20 of the Act.

The Statutory Instrument sets out that the normal weekly rate of pay of the Appellant for the purposes of Section 20 of the Act is statutorily defined as

‘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’.

No submission has been made that the Appellant at any time received pay for annual leave other than in accordance with his “normal weekly rate” of pay paid in respect of the normal weekly working hours last worked by him when such leave occurred.

The Court concludes that the pay of the Appellant was at all times correctly determined by reference to the regulations made by the Minister for the purpose and not by any other means. The within appeal therefore must fail.

Decision

The complaint of the Appellant has not been made out. The appeal fails and the decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
7 March 2024	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.