Complainant

Respondent

Parties

Ivona  Zacko

Costern ULC t/a Trinity Care Nursing Homes

Representatives

  Self-represented

 HR Director

Act

Complaint 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-00064759-001

14/07/2024

The complainant commenced employment with the respondent as a staff nurse on 3 December 2024.

This complaint, received 14 July 2024, concerned calculation of public holiday and Sunday work entitlements under the complainant’s contract of employment and the Organisation of Working Time Act 1997.

The complainant worked with the respondent as a staff nurse from 1 December 2023 until 8 August 2024.

Under her contract of employment and in law, the complainant is entitled to an additional day’s pay (11 hours) in respect of public holiday entitlement if she works on a public holiday, and to payment for 11 hours if she is off on a public holiday.  The respondent incorrectly calculated the complainant’s public holiday entitlement.  The complainant’s payslips consistently showed 7.7 hours pay for public holidays.

In relation to the calculation of Sunday premium, the complainant’s contract provided for payment for Sunday work at a basic rate of €23.00 per hour plus a 30% premium.   However, the complainant’s payslips did not reflect this premium accurately and pay for Sunday work appeared to be inconsistent and not in line with the complainant’s contract of employment. 

On referring her complaint to the Commission, the complainant sought immediate rectification of the public holiday and Sunday pay calculations to reflect correct entitlements as per the complainant’s contract and the law, together with back payment for all incorrectly calculated payments and a review and adjustment of all future pay slips to ensure compliance.

The complainant submitted documentation in support of her complaint, including communications in relation to the respondent’s investigation of her complaint, payslips, and a draft investigation report.

Under the terms of the complainant’s employment with the respondent, the complainant could be rostered to work any day of the week, including Sundays and public holidays.

The respondent acknowledged the complainant’s entitlement to public holiday benefit under the Organisation of Working Time Act 1997.  In circumstances where a day off in lieu was not granted and where the complainant worked on a public holiday, the respondent now understood the complainant’s entitlement to be 11 hours basic pay based on the complainant working an 11-hour shift, along with payment of an additional day’s pay for 11 hours, this being the complainant’s normal working day.  The respondent further understood that where the complainant was not rostered to work on a public holiday and where a day off in lieu was not granted, then the complainant’s public holiday entitlement is to payment for the public holiday, which payment is calculated by reference to one-fifth of the employee’s normal weekly pay.   

The respondent established that it had incorrectly calculated public holiday payment for the complainant on foot of an investigation of a complaint raised by the complainant and its meeting with the complainant of 28 June 2024.  The respondent had informed the complainant of its mistake and rectification of same by making payment to the complainant on 5 September 2024 of the underpayment.

The respondent made a genuine mistake.  In this regard, it referred to conflicting advice it had received from HR and legal professionals on the application of the law and calculation of public holiday payment entitlements. The respondent is committed to ensuring compliance in this area.

The complaints referred for adjudication under section 27 of the Organisation of Working Time Act 1997 (the “1997 Act”) relate to the respondent’s calculation of public holiday benefit and payment for Sunday work.

In coming to my decision on the complaints before me, I have had regard to the relevant submissions and evidence tendered, and the applicable law.

At the hearing, the complainant stated that the Sunday work payment aspect of her complaint was not the main issue and agreed with the respondent’s position that how the respondent calculated Sunday work pay was explained to the complainant at the meeting of 28 June 2024.  However in circumstances where the complainant lodged her complaint with the WRC on 14 July 2024, which complaint expressly included a complaint about incorrect calculation of Sunday premium, the complainant referred to Sunday premiums as a significant issue in communications with the WRC on 29 July 2024 and referenced the Sunday premium in post-hearing submissions, and where this aspect of the complaint was not withdrawn by the complainant, I consider it appropriate to address same in this decision.

The material facts were not in dispute between the parties.  The respondent paid a benefit for public holidays and paid a Sunday premium; the issue was in relation to the respondent’s calculation of same.

The respondent initially paid the complainant public holiday pay using a daily average of 6.75 or 7.7 hours, calculated by reference to hours worked over a 2-week period.   The complainant raised this and the Sunday work premium with the respondent as a formal complaint on 18 June 2024.  The complaint was that the complainant’s public holiday entitlement should be based on her 11-hour shift, and that she did not receive appropriate additional compensation for working an 11-hour shift on Sundays in accordance with her contract and law.    There followed an investigation of the complaint by the respondent’s HR Manager and an investigation meeting took place on 28 June 2024.  It was agreed at the meeting that the complainant would submit relevant payslips and documentation for the respondent to review.  Further to the respondent’s investigation, the respondent issued a draft report dated 26 July 2024 and a final report dated 8 August 2024.  Both reports included a recommendation that additional advice be sought by the respondent from a consultancy firm regarding compliance with the law.  Further to that recommendation, the respondent obtained advice from an external employment law advisor and a law firm on its calculation of public holiday entitlement payments.   On foot of the advice obtained, the respondent established that the complainant had been incorrectly compensated for public holidays worked and that she had been underpaid for public holidays not worked.   By correspondence dated 5 September 2024 to the complainant, the respondent acknowledged the foregoing, set out the detail of public holidays worked and not worked by the complainant since commencement of employment and upheld the complainant’s grievance in relation to public holiday pay.  The correspondence further advised of the amount that would be paid to the complainant on that date in respect of outstanding payment and in closure of the grievance, and resolution of the claim before the Workplace Relations Commission.  At the hearing the respondent accepted its error in calculating public holiday pay and apologised for that.  When it received conflicting advice on payment for public holidays, it had sought a third legal opinion and corrected the payment error.  

Scope of Adjudication

Section 41 of the Workplace Relations Act 2015 applies to this complaint under section 27 of the 1997 Act.  Section 41 requires complaints to be presented to the Commission within 6 months of the date of contravention to which the complaint relates, which period can be extended by no more than a further 6 months for reasonable cause.

This complaint was presented to the Commission on 14 July 2024.   The relevant public holidays within the 6-month cognisable period and the scope of my investigation are the first Monday in February (5 February 2024), St Patrick’s Day, Easter Monday (1 April 2024), the first Monday in May (6 May 2024) and the first Monday in June (3 June 2024).

It was submitted post-hearing that the complainant was entitled by her contract to basic pay plus a premium not only for Sunday work but also for public holidays worked.  I disagree with the submission that this is clearly stipulated in the contract but more importantly I consider it moot in circumstances where I am investigating complaints of incorrect calculation of pay by reference to the 1997 Act, the relevant parts of which are set out in this decision, and not by reference to the contract of employment.

Furthermore, for clarity, on my review of the rosters and payslips, the complainant was at all material times properly paid for the hours she worked on a public holiday.  The issue with which I am concerned is the respondent’s calculation of the ‘additional day’s pay’ public holiday benefit.

Public Holidays

Section 21 of the 1997 Act states: -

“(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

a) a paid day off on that day

(b) a paid day off within a month of that day

(c) an additional day of annual leave

(d) an additional day's pay”

Section 22 of the 1997 Act provides as follows:-

“(1) The rate—

(a) at which an employee is paid in respect of a day off under section 21, and

(b) of an employee's additional day's pay under that section,

shall be such rate as is determined in accordance with regulations made by the Minister for the purposes of that section.

(2) For the purposes of section 21, time off granted to an employee under that section or section 19 shall be regarded as time worked by the employee.”

The Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997, SI 475 of 1997 (the “1997 Regulations”), address the appropriate daily rate of pay for the purpose of section 21 of the Act and how it should be calculated. 

The complainant was paid a fixed hourly rate of €23.00 for hours worked Monday to Saturday.  The complainant was paid €23.00 per hour worked on Sundays plus a premium of 30%.  As the complainant was paid a fixed rate, regulation 5(1)(a) and regulation 5(2) are applicable.

Regulation 5(1)(a) provides that where the employee concerned works or is normally required to work on a public holiday:

“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.”

Where the relevant employee does not work on a day which is a public holiday, Regulation 5(2) provides:

“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,”

There are, and were at the material time, ten public holidays provided for by the Second Schedule to the 1997 Act.

An issue arose at the hearing about the St Patrick’s Day public holiday.  St Patrick’s Day in 2024 fell on Sunday, 17 March.  The complainant asserted that the designated St Patrick’s Day public holiday in 2024 was Monday, 18 March.  The respondent submitted that its business operates 7 days a week and where the complainant could, contractually, have hours of work scheduled any day between Monday and Sunday, the St Patrick’s Day public holiday benefit arose on the day of the public holiday, namely 17 March. 

I am satisfied that the St Patrick’s Day public holiday is 17 March, irrespective of the day of the week on which it falls.   Whilst an employer may choose to close its business on a Monday or other weekday where St Patrick’s Day falls on a Sunday and pay employees for that closure day, that does not alter the date of the public holiday and it is not a legal requirement or entitlement, rather it is one of the options open to an employer in giving effect to an employee’s entitlements under section 21 of the 1997 Act.

Therefore, in relation to the in-scope public holidays, the complainant worked on the 5 February 2024 and 1 April 2024 and the complainant did not work on St Patrick’s Day (17 March 2024), 6 May 2024 and 3 June 2024.

The respondent determined to give public holiday benefit to the complainant by way of an additional day’s pay.

The complainant was paid 7.7 hours pay in respect of public holiday entitlement for each of the in-scope public holidays in the payroll run in which the public holiday fell.  On the two public holidays worked by the complainant, the 7.7 hours pay was in addition to pay for the hours worked by the complainant on the public holiday. 

In accordance with the 1997 Act and the 1997 Regulations, on the 2 public holidays worked by the complainant, the complainant ought to have been paid a sum equal to the sum, including any regular, non-variable bonus or allowance, paid in respect of the normal daily hours last worked by the complainant.  In respect of the 3 public holidays the complainant did not work, the complainant ought to have been paid a sum equal to one-fifth of the sum paid in respect of the normal weekly hours worked by the complainant before the public holiday. 

In correspondence dated 5 September 2024, the respondent acknowledged an underpayment.  In respect of the public holidays worked by the complainant, the respondent’s position in that correspondence was that the complainant ought to have been paid 11 hours in respect of the additional day’s pay benefit.  On review of the rosters, the sum payable as an additional day’s pay for the 5 February 2024 and 1 April 2024 public holidays was in fact €253.00, based on that sum being equal to the sum paid in respect of the normal daily hours last worked by the complainant before those public holidays.  The respondent’s rectification payment to the complainant in September 2024 covered the sum properly payable to the complainant in respect of these two public holidays worked.   However, it is worth noting here that the appropriate daily rate for the additional day’s pay should be the sum paid in respect of normal daily hours last worked, and not the number of the normal daily hours last worked.  Therefore, had the complainant worked normal daily hours on the Sunday before the two public holidays in question, the additional day’s pay benefit would be the sum paid in respect of the complainant’s Sunday hours of work. 

I disagree with the respondent’s method of calculating the underpayment in respect of public holidays not worked by the complainant, as set out in its correspondence dated 5 September 2024.  Whilst the respondent correctly stated that the complainant ought to have been paid “the sum that is equal to one-fifth of the sum paid in respect of the normal weekly hours last worked by the employee before that public holiday”, it calculated the payment for an additional day’s pay by reference to one-fifth (8.8 hours) of hours worked.   

Regulation 5(2) of the 1997 Regulations provides for the calculation of the relevant rate by reference to one-fifth of the “sum paid in respect of the normal weekly hours last worked by the employee”.  In respect of the 3 public holidays in scope which were not worked by the complainant, the normal weekly hours last worked by the complainant before the public holiday included Sunday work.  The correct application by the respondent of Regulation 5(2) and calculation of the public holiday benefit by reference to the “sum paid”, as opposed to normal weekly hours, would have included the Sunday premium paid to the complainant. 

Applying Regulation 5(2) of the 1997 Regulations to my review of the roster documentation, the complainant ought to have been paid €217.58 as an additional day’s pay for each of the public holidays not worked during the cognisable period, namely St Patrick’s Day (17 March 2024), 6 May 2024 and 3 June 2024.  The foregoing is based on the respondent operating a weekly roster of Monday to Sunday, and the sum paid in respect of the normal weekly hours last worked by the complainant before the public holiday, namely the weeks from 4 to 10 March 2024, from 29 April to 5 May 2024 and from 27 May to 2 June 2024.

Sunday Work

The complainant’s normal working week was Monday to Sunday.  The complaint presented to the Commission included a complaint about incorrect calculation of Sunday premium.

Section 14 of the 1997 Act provides for compensation for Sunday work as follows:-

“(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs.”

It is clear from section 14 that where an employee’s pay does not take account of the requirement to work on a Sunday, then the employee shall be compensated by the employer by reference to the criteria set out in subsections (a) – (d).

The complainant’s terms and conditions of employment require work on a Sunday on a rota basis.  The evidence before me in the form of payslips and the contract of employment show that Sundays worked by the complainant were paid at the basic gross hourly rate of €23.00 per hour plus a 30% premium.

In the circumstances, I cannot find that the complainant’s pay did not take account of the requirement to work on a Sunday, and I find that this aspect of the complainant’s complaint is not well founded.

Conclusion

In accordance with section 27 of the 1997 Act, I find that the complaint in relation to incorrect calculation of public holiday entitlement in contravention of section 22 is well founded.  I further decide that the respondent is required to pay to the complainant compensation for the contravention in the sum of €650.00.    In determining this amount of compensation to be just and equitable, I have had regard to the value of the appropriate daily rate payable to the complainant in respect of public holiday benefit within scope, and payments previously made to the complainant in respect of public holiday benefit.  I have also had regard to the fact that this complaint concerned incorrect calculation as opposed to non-observance of entitlement.  I accept the bona fides of the respondent in its efforts to address any error on its part and to rectify the public holiday benefit issue with the complainant. I also acknowledge the efforts on the part of the complainant in having to address this issue at local level and before the Workplace Relations Commission.  I consider the compensation as assessed to be just and equitable having regard to all the circumstances.

I do not find the complaint in relation to incorrect calculation of Sunday premium to be well founded.

For the reasons set out above, I find the part of the complaint referable to incorrect calculation of public holiday entitlement to be well founded and I require the respondent pay to the complainant compensation of €650.00. 

I find that the complaint in relation to incorrect calculation of Sunday premium is not well founded.

Organisation of Working Time Act – Calculation of public holiday pay – Calculation of Sunday premium