ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00053736

Parties:

Complaint:

Date of Adjudication Hearing:  05/12/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 27 of the Organisation of Working Time Act 1997, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complaint is in relation to public holidays in relation to the Complainant who is a job sharer.

Summary of Complainant’s Case:

The Complainant’s application for job sharing was approved in March 2023. No formal contract has been issued. Issues have arisen due to perceived inequalities in the allocation of working days and public holiday entitlements.

ISSUE IN DISPUTE The primary issues in dispute include:

1. Disparity in workload: The member worked at least three days more in the year than the job-share colleague during the academic year 2023/24.

Inequitable public holiday entitlements: The member's colleague received time off and payment for public holidays, while the member received neither. Section 21 and 22 of the Organisation of Working Time Act 1997 is the relevant section here. Scheduling challenges due to the colleague’s additional half-post, limiting their ability to balance workload.

1. Lack of satisfactory response and resolution from WWETB HR and the Department of Education.

the following arguments are presented in support of the case:

• According to Circular 0041/2014, job-share arrangements should be evenly balanced, yet the member worked additional days without compensation.
• The same circular also entitles both job-share partners to equal benefit from public holidays, which has not been observed.
• As per the Organisation of Working Time Act, 1997, if a public holiday falls on a non-working day, the employee is entitled to a paid day off, an additional day of leave, or payment. The member received none of these entitlements. Section 21 and 22 of the organisation of working time act deals with this and the public holidays which the member that I represent was not paid for are Oct 30th, Dec. 25th, Dec. 26th, Jan 1st 2024, Feb 5th, March 18th, April 8th, May 6th, June 3rd and Aug 7th.
• Efforts to seek clarification from WWETB HR and the Department of Education have been unproductive, resulting in no clear guidance or compensation.

In Ireland there are ten public holidays each year.

From 2023, there is a public holiday on the first Monday in February, except where 1st February falls on a Friday in which case that Friday 1st February will be the public holiday.

Public holidays are:

Good Friday is not a public holiday and is a normal working day.

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

• 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 of pay

Full-time workers have immediate entitlement to benefit for public holidays and part-time workers have entitlement to benefit when they have worked a total of 40 hours in the previous 5 weeks.

When a person works on a public holiday they are entitled to be paid for the day in accordance with their agreed rates. In addition, they also have an entitlement to benefit for the public holiday. This can be different for each public holiday and each employee depending on the individual's work pattern.

If the business is closed on the public holiday and an employee would normally be due to work, then they get their normal day's pay.

If the business is open and an employee works, he/she is entitled to either paid time off or an additional day's pay. The additional day's pay is what was paid for the normal daily hours last worked before the public holiday.

If an employee is not normally rostered to work, then they will be entitled to one-fifth of their normal weekly wage extra.

If an employee ceases to be employed during the week ending on the day before a public holiday, having worked during the 4 weeks preceding that week, he/she is entitled to receive pay for the public holiday.

Where the public holiday falls on a day which is not a normal working day for that business (e.g. a Saturday or Sunday) employees still have entitlement to benefit (b, c or d above can be given as the benefit options).  However, there is no legal entitlement to have the next working day off work.

If a person is on temporary lay-off they are entitled to benefit for the public holidays that fall within the first thirteen weeks of lay-off.

The relevant provision of the Act is Section 21(6) in respect of payment for a public holiday on which the employee is not expected to work.

SUMMARY The Complainant has faced issues with the inequitable distribution of workdays and public holiday benefits in the job-share arrangement. Although various attempts were made to resolve the issue through school administration, WWETB HR, and the Department of Education, no definitive or satisfactory solution has been provided.

CONCLUSION It is requested that WWETB rectify these discrepancies by:

1. Compensating the member for the additional days worked and unpaid public holidays which equates to approximately €1499.42
2. Establishing a clear, fair approach to public holiday allocation for both job-share partners.
3. Issuing a formal job-share contract to prevent further misalignment and to support transparency in workload distribution.

Summary of Respondent’s Case:

The Complainant has alleged that she did not receive her entitlements to public holiday pay. The Company refutes this allegation and would insist that she has been compensated in accordance with her contract of employment and the relevant Department of Education Circular.

She currently works on a job sharing basis with WWETB as a Special Needs Assistant. Her days of work are Wednesday morning and all day Thursday and Friday. The person working opposite her works, amongst other days, every Monday.

In the academic year 2023 to 2024, public holidays fell on the following days:

Monday 30/10, 25/12, 01/01, 05/02, 18/03, 01/04, 06/05, 03/06 Tuesday 26/12.

While the Complainant received a half day for each of the above as she did not work any of these public holidays, the person working opposite her, and therefore every Monday and Tuesday, would have been off for the full days as she was normally required to work those days.

The Complainant believes she is entitled to full days for each of the above public holidays, even though she did not work them nor was she scheduled to work them. She received 10 days additional annual leave to compensate her for the public holidays, at the rate of one fifth of her working week, the equivalent of half a day for each public holiday.

Company arguments

Section 21 of the Organisation of Working Time Act 1997 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:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.”

In short, it is up to the employer to determine the manner in which an employee will receive their public holiday entitlements. 

Department of Education Circular 0054/2019 states, at Chapter 10:

“1.1 Statutory Annual Leave and Public Holiday entitlement is regulated by the Organisation of Working Time Act, 1997 (as amended). In general, full-time employees are entitled to a minimum of 20 days Annual Leave in each leave year.

1.2 Employees who work less than full hours are entitled to Annual Leave on a pro-rata basis.

1.6 Annual Leave entitlements should be taken on existing school closure days that occur during the relevant leave year.”

The Complainant receives considerably more than her statutory entitlement of 30 days annual leave, by way of 20 days statutory annual leave and 10 days by way of the 10 public holidays that fall each year.

Department of Education Circular 0041/2014 states, at section 16:

“16 Public Holiday Entitlements

16.1 Entitlements arising from public holidays to a job-sharing special needs assistant will accrue to the special needs assistant who would otherwise be scheduled for duty on the day in question. In such cases however, the normal attendance regime will, where necessary be varied slightly with a view to allowing both job sharing partners to benefit equally from public holidays.”

The Complainant clearly believes she is not receiving the same entitlements as the person working opposite her. Depending on when a public holiday falls, that may well be the case. This is governed by the Organisation of Working Time (Determination of Pay For Holidays) Regulations, 1997 (SI475/1997). Section 5 deals specifically with the payment for public holidays:

“(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 if not 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.”

The Respondent does accept that a person whose job sharing hours regularly include Mondays may receive more public holiday entitlements that a person who does not. In such a situation, and per the above legislation, an employee would be entitled to the full day while an employee who does not work the public holiday would be entitled to the equivalent of a half day (one fifth of a working week). This issue is specifically addressed in Circular 0041/2014, where the working days can be ‘varied’ in order to ensure that jobsharers to ‘benefit equally’. On that basis, the option to work Monday, Tuesday and a half day on a Wednesday was put to the Complainant, but this was declined by the Complainant where she advised that she wished to work Wednesday morning, Thursday, and Friday. 

Throughout her discussions with the Principal, the Complainant has alleged she is not receiving her full entitlements. This simply is not the case. She is paid the same amount on a fortnightly basis, every fortnight, over the course of a year. She is paid the same amount when the school is closed for two weeks at Christmas and again at Easter as well as two months when the school is closed for the summer. Not only that, but she is also paid for the three mid term breaks. All told she receives between fourteen and sixteen weeks paid leave over the course of a year. This is borne out in the payslips for the twelve months 13 November 2023 to 10 November 2024.

Conclusion 

The Complainant has received her entitlements for public holidays in accordance with the Organisation of Working Time (Determination of Pay For Holidays) Regulations, 1997. It is unfortunate that the timing of all public holidays in the last academic year was on days that she was not due to work. While she was paid correctly, one fifth of her normal working week, she is seeking the benefits for someone who would normally have worked those days.  In order to attempt to resolve this imbalance, she was offered the opportunity to change her days so that she would be working on a Monday. This is catered for in Circular 0041/2014. She declined this offer.   Her leave entitlements are correct and in accordance with the Organisation of Working Time Act 1997 and the regulations referred to above.

Findings and Conclusions:

The complaint in this instant case is that the Complainant has suffered inequitable treatment in relation to public holidays in comparison to her job sharing colleague.

As the complaint was submitted under the terms of the Organisation of Working Time Act 1997, it is to that applicable law I must address my findings.

Section 21 of the Act provides:

“21—(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—

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom”.

In this instant case, the Respondent has submitted that the Complainant received 10 days additional annual leave to compensate her for the public holidays, at the rate of one fifth of her working week, the equivalent of half a day for each public holiday.  It appears this is paid to her on a consistent basis throughout the year.  It is regrettable that she may not have received clear answers in relation to the calculation of the public holidays but the Respondent referred her to the Principal in relation to distribution of days in relation to the scheme as it applied.

I note that Department of Education Circular 0041/2014 states that the normal attendance regime could be varied to allow job sharers benefit equally from public holidays.  I note the Complainant declined the Respondent’s offer in that regard.

Statutory Instrument S.I. 475/1997 sets the determination of pay for public holidays. In the case of the Complainant, I am satisfied that the Respondent has fulfilled their obligations in relation to Section 21 of the Act and S.I. 475/1997.  I find no breach of the legislation.  The complaint is not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision in relation to the complaint of a contravention of a relevant provision of that Act.

For the reasons cited, I have decided the complaint as it applies to the Organisation of Working Time Act 1997 is not well founded.

Dated:   06/02/2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: