DWT2411

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00038381 (CA-00050014-001).

BACKGROUND:

The Worker appealed the Adjudication Officer's Decision to the Labour Court on the 14th of March 2023. A Labour Court Hearing took place on the 22nd March 2024. The following is the Labour Court's Determination:

DECISION:

Background to the Appeal

This is an appeal by Ms Ilona Chorpeza (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00038381, dated 7 March 2023) under the Organisation of Working Time Act 1997 (‘the Act’). The Adjudication Officer decided that the complaint under the Act was not well-founded. Notice of Appeal was received in the Court on 14 March 2023. The Court heard the appeal in Waterford on 22 March 2024.

The Claim

The Complainant works an average of 42 hours per week on a four-cycle shift pattern (12 hours per shift). Her current rate of pay is €24.13 per hour (inclusive of a shift allowance of 33⅓%).

The within complaint was referred to the Workplace Relations Commission on 12 April 2022. The period comprehended by the complaint is therefore the six-month period beginning on 13 October 2021 and ending on 12 April 2022.

The complaint relates to the manner in which the Complainant’s pay for the public holidays that fell within the aforementioned period was calculated. The Complainant submits that the relevant payments were not calculated in accordance with S.I. No. 475/1997 - Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 (‘the Regulations’). The Complainant’s written submission summarises her complaint as follows:

“When the last night of a night shift falls on a day before the public holiday with five hours 7.00 pm to 12.00 [midnight] being worked in the day before the public holiday but seven hours 12.00 [midnight] to 7.00 am falling outside the public holiday [the Complainant] is currently paid 5 hours normal pay, 7 hours double time plus 7 hours public holiday pay. This amounts to 19 hours. We are seeking 5 hours extra pay as per legislation.”

The second element to the within claim relates to the calculation of payment for public holidays on which he was not rostered to work. The claim is articulated as follows in the Complainant’s written submission:

“On a day when a public holiday falls when the [Complainant] is not rostered to work, they receive 8.4 hours as ⅕ of their working week which does not include regular weekly overtime of two hours (paid at a rate of 1 hour plus 1 hour and the other hour paid at ¾ of an hourly rate [sic]) = 43.75 hours. This should lead to a calculation of 8.7 hours and not 8.4 hours using the ⅕ of a working week for the calculation.”

On behalf of his employer – Bausch Health Ireland T/A Bausch & Lomb (‘the Respondent’) – it is submitted that the Complainant was paid an amount in respect of the public holidays in question that exceeds that provided for in the Regulations. The Respondent’s methodology for calculating payment for those whose shifts – such as that of the Complainant – fall partly on a public holiday is as follows:

• Employees receive basic pay (including shift allowance) for any hours worked outside the 24 hours of the public holiday;
• For hours worked within the 24 hours of the public holiday, employees are paid at treble time on the basic rate (inclusive of shift allowance).

In response to the second element of the Complainant’s claim (i.e. in respect of public holidays on which she was not rostered to work), the Respondent submits that it does not include overtime in the calculation of payment for such public holidays as overtime is explicitly excluded from the calculation by Regulation 5(2)(a). The Respondent’s position, in summary, is that it has fully complied with the Regulations in respect of payments made to the Complainant for public holidays on which she was not rostered to work.

The relevant Public Holidays

The following lists the public holidays that fell in the cognisable period, along with the payments/compensation received by the Complainant in respect of those public holidays:.

The Law

Regulation 5 of the Regulations provides:

“5. Relevant rate for employees (other than certain categories of job sharer)

—(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,

 (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,

or

(ii) if no time was worked by the employee during that period, the period of 13 weeks ending on the day on which time was last worked by the employee before that public holiday.

 (2) If the employee concerned (not being an employee to whom paragraphs (a), (b) and (c) of Regulation 6 of these Regulations apply) does not work on a day which is a public holiday, then—

(a) in the 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 one-fifth of 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 in respect of the normal weekly hours last worked by the employee before that public holiday,

(b) in any other case, the relevant rate in respect of that public holiday shall be the sum that is equal to one-fifth of the average weekly pay (excluding any pay for overtime) of the employee calculated over—

(i) the period of 13 weeks ending immediately before that public holiday, or

(ii) if no time was worked by the employee during that period, the period of 13 weeks ending on the day on which time was last worked by the employee before that public holiday.

Provided that the relevant rate to which the employee concerned shall be entitled under this paragraph in respect of a public holiday shall not exceed the relevant rate to which he or she would be entitled in respect of that holiday if subparagraph (a) or (b), as the case may be, of paragraph (1) of this Regulation were to apply to him or her.”

Discussion and Decision

Having carefully considered the Parties’ comprehensive written and oral submissions, the Court finds that the Complainant has been compensated no less favourably than provided for in the Regulations for both the public holidays on which she was scheduled to work and those on which she was not scheduled to work within the cognisable period. The Complainant has not suffered any detriment, financial or otherwise, arising from the manner in which the Respondent has calculated her public holiday payments within the cognisable period.

In bringing the within claim and appeal, the Complainant is essentially attempting to expand the meaning ascribed to the term ‘public holiday’ for the purposes of the Act and the Regulations i.e. in circumstances where part only of her twelve-hour shift fell within the twenty-four hour period of the actual public holiday in question, she is seeking to have her pay for the hours that formed part of the same shift worked on a day preceding or immediately following the calendar public holiday calculated as if they had been worked on the public holiday itself. The Complainant is also seeking to have overtime included in the calculation of payment for public holidays in respect of public holidays on which she didn’t work. Neither element of what the Complainant seeks is provided for in either the statute or the Regulations and to accede to the within claim would cause this Court to exceed its jurisdiction and to trespass into the realm of the legislature. For this reason, the appeal fails and the decision of the Adjudication Officer is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
TH	______________________
29 April 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.