Complainant

Respondent

Parties

Shabbir  Ahmed

ICTS  Ireland Ltd

Representatives

self

Hugh Hegarty Peninsula Business Services Ireland

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-00074882-001

27/08/2025

The following are the pay details of the Complainant who is employed as security guard with the company as detailed in his original form, that have subsequently changed in line with an Employment Regulation Order:

·        Hourly Gross Pay €15.15

·        Hours worked 42.00

He claims the following as detailed in his complaint form:

“This Complaint is about Public Holiday Top Up Payment. I am working as a security officer. I am working 12 Hours Night Shifts. Across my 2 week roster pattern / roster cycle are: Week A: Mon, Tue, Fri, Sat, Sunday 12 Hours Nights. WEEK B: Wed, Thursday 12 Hour Nights. All days of the week are my normal work days. My Contract of Employment Say I should get paid only 8 Hours Top Up but My normal shift hours are 12 in every night shift. I am claiming 12 Hours for each Public holiday plus night shift premium of €16.8 per shift under the Organization of Working Time Act. I am getting paid only 8 Hours but I am entitled to 12 Hours Plus Night Shift allowance of €16.8 under the Organization of Working Time ACT. I am claiming for 28 Feb 2025, 11 Apr 2025, 09 May 2025, 23 May 2025, 20 June 2025 and 29 Aug 2025. Total Amount Due is €464.40.”

The Respondent stated that he has been properly paid other than  an unsocial hours premium which is being corrected.

The unsocial hours premium is set out in the S.I. No. 319/2024 - Employment Regulation Order (Security Industry Joint Labour Committee) 2024:

The Company was asked to provide information and evidence from their payroll supervisor about how employees are paid when they work on a public holiday.

The Payroll Manager Ms Banozic confirmed the following:

“For ease its prudent to mention that the claimant normally works 12-hour shifts between 20.00 and 8.00.

The calculation for Public Holiday pay by ICTS is that each employee who works on a public holiday is paid at a rate of double time for the hours worked on each public holiday, either 4 hours or 8 hours. [ The shift pattern straddles two days e.g. either starts at 8pm and finishes at 8.00am as in this case].

In addition, for each public holiday worked the claimant receives a “top up” payment of 8 hours at flat rate.

Therefore, regardless of how many hours, (either 4 or 8) [that fell] on the public holiday, the “top up” payment ensures, that each employee is paid for the hours worked and an additional 12 hours in accordance with the legislation.

It has been noted and referenced at the hearing that there has been an error in calculations which is currently being corrected.”

After the hearing the Complainant wrote the following:

Dear Adjudicator, I attach my latest payslip dated 10/04/2026 (work period 16/03/2026 – 29/03/2026) for St Patrick’s Day (17 March 2026), on which I worked my normal 12-hour night shift. On this payslip: · “Bank Holiday - x2.0” is correctly shown as 12.00 hours at double time. This is the contractual premium for the hours actually worked (Payment of Wages Act). · “Top Up Bank Holiday” remains only 8.00 hours at the basic rate. The statutory top-up under Regulation 5(1)(a) OWTA must be my normal daily hours (12 hours × €16.00 + €20.00 night allowance = €212.00). The employer has still paid only €128.00 as top up. The underpayment on this date alone is €84.00. This is the identical OWTA error complained of in all three cases. The employer has not corrected the statutory top-up payment. I request that this payslip be added to the file for all three complaints and taken into account when the complaints are decided. Thank you, Shabbir Ahmed

The following is detailed in that payslip:

Overtime - Hourly Rate x 1.5 54.00 16.0600 18.00 24.0900 Basic - Fixed Hourly Rate Top Up Bank Holiday Bank Holiday - x2.0 Night Allowance Sunday Hours Backpay - Night 8.00 16.0600 12.00 32.1200 20.0000 8.00 12.00 19.5000 Cash 433.62 867.24 128.48 385.44 160.00 234.00 100.80

The Complainant is employed as a security officer working 12-hour night shifts from 20:00 to 08:00. His two-week roster requires him to work five nights in Week A (Monday, Tuesday, Friday, Saturday, Sunday) and two nights in Week B (Wednesday, Thursday). He submitted that all days of the week are normal working days for him under his roster. His contract of employment provides for a top-up payment of 8 hours on public holidays. He contended that his normal shift is 12 hours and that he is accordingly entitled to a top-up of 12 hours under the Organisation of Working Time Act 1997, together with the night shift unsocial hours premium of €16.80 per shift under S.I. No. 319/2024. He identified six public holidays in respect of which he claimed underpayment: 28 February 2025, 11 April 2025, 9 May 2025, 23 May 2025, 20 June 2025, and 29 August 2025, claiming a total of €464.40. Following the hearing the Complainant submitted his payslip dated 10 April 2026 in respect of St Patrick’s Day 2026 (17 March 2026), on which he had worked his normal 12-hour night shift. That payslip showed the top-up bank holiday payment at 8 hours flat rate. He maintained that the statutory top-up under Regulation 5(1)(a) of S.I. No. 475/1997 must be calculated by reference to his normal daily hours of 12 and that the employer had underpaid him by €84.00 on that date alone.

The Respondent, represented by Mr Hugh Hegarty of Peninsula Business Services Ireland, submitted that the Complainant had been correctly paid in respect of his public holiday entitlement. The Payroll Manager, Ms Banozic, confirmed in a post-hearing statement that the Complainant normally works 12-hour shifts between 20:00 and 08:00. She explained that where a shift straddles an ordinary day and a public holiday, double time is paid on the hours falling within the calendar day of the public holiday, being either 4 or 8 hours depending on the shift, and in addition a flat rate top-up of 8 hours is paid. The combined effect is that the employee receives payment for the hours worked together with an additional 8 hours at flat rate, satisfying the statutory entitlement. The Respondent acknowledged that an error had been made in the payment of the unsocial hours premium in respect of public holidays and confirmed that this had been rectified by way of backdated payment. The Respondent’s position was that the statutory entitlement under section 21 of the Act is to an additional day’s pay, that a day in the context of this employee’s shift equates to 8 hours falling within the public holiday calendar day, and that the 8-hour top-up correctly satisfies that entitlement.

 The issue must be determined having regard to the statute at:

Entitlement in respect of public holidays.

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—

(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.

And section 22 states that Public Holiday entitlement will be calculated as follows:

Public holidays: supplemental provisions.

22.— (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.

And regulation 5 states:

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 ) 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,

An additional day’s pay is 8 hours not 12 hours. The Complainant views the language in the regulation as the normal daily hours last worked by him before that public holiday as 12 hours. That is the shift he works but that shift straddles over two days. The language of the statute also has to be considered to interpret what the actual entitlement is.

The Complainant has framed his claim as follows:

Top Up Bank Holiday” remains only 8.00 hours at the basic rate. The statutory top-up under Regulation 5(1)(a) OWTA must be my normal daily hours (12 hours × €16.00 + €20.00 night allowance = €212.00). The employer has still paid only €128.00 as top up. The underpayment on this date alone is €84.00. This is the identical OWTA error complained of in all three cases

This case primarily is about statutory interpretation of Regulation S.I. No. 475/1997 - Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997 about the calculation of Public Holiday entitlement.

His shift straddles over two days. He starts work at 20.00 and finishes at 8.00am. A public holiday begins at midnight not when the Complainant begins his shift at 20.00. The claim turns on what is the definition of a day and normal daily hours. The Complainant works 12-hour shifts, and this does not equate to 20 x 12-hour annual leave days. The Act is clear that the number of hours worked in a leave year gives rise to up to 4 weeks statutory leave. The actual hours worked each day gives rise to an entitlement that is based on the cumulative hours worked in a relevant leave year. This means that an employee may work different shift hours but accumulate the required hours to entitle him to 4 weeks annual leave. The Act specifically draws comparison between an annual leave day and a public holiday as equivalent.

The statute refers to 4 weeks holiday. The intention is to match what the worker would be paid on a normal week not more. In this case the Complainant worked 8 hours on a public holiday and that is what he received. The currency used in the Act is day and at paragraph (c) states clearly an alternative to an additional day’s pay would be an additional day of annual leave. This must mean that his entitlement is to a day’s annual leave and not to a payment of 12 hours. The Complainant works 12-hour shifts that straddle two calendar days. He starts work at 20:00 and finishes at 08:00. A public holiday begins at midnight, not when the Complainant begins his shift at 20:00. Only 8 hours of his shift fall within the calendar day of the public holiday. Those 8 hours constitute his normal daily hours referable to the public holiday for the purposes of Regulation 5(1)(a). His statutory entitlement under section 21 is therefore an additional day’s pay of 8 hours. The Complainant himself submitted a payslip dated 10 April 2026 in respect of St Patrick’s Day 2026 in support of his complaint. That payslip records “Top Up Bank Holiday: 8.00 hours” at his flat hourly rate. His own evidence therefore confirms that he received the statutory additional day’s pay of 8 hours to which he was entitled under section 21 of the Act. The complaint is not well founded. The unsocial hours premium was accepted by the Respondent as having been paid in error and has been rectified by way of backdated payment. In those circumstances it would not be just or equitable to make an award of compensation in respect of that administrative error.

The statutory entitlement under section 21 of the Organisation of Working Time Act 1997 is to an additional day’s pay. The Act uses “day” as its unit of measurement throughout. The Complainant’s 12-hour shift straddles two calendar days, commencing at 20:00 on the ordinary day and concluding at 08:00 on the public holiday. A public holiday begins at midnight. Only 8 hours of his shift fall within the calendar day of the public holiday and those are the normal daily hours referable to that public holiday for the purposes of Regulation 5(1)(a) of S.I. No. 475/1997. His statutory entitlement is an additional day’s pay of 8 hours. The Complainant’s own payslip of 10 April 2026, submitted by him in support of his complaint, records a top-up bank holiday payment of 8 hours at his flat hourly rate. His own evidence confirms that the statutory entitlement was paid. The unsocial hours premium was accepted by the Respondent as an administrative error and has been rectified by a backdated payment. The complaint is not well founded.

Public Holiday entitlement