DWT2232

1. Appeal of Adjudication Officer Decision No’s: ADJ-00033597 CA-00044706-001.

BACKGROUND:

2. An Adjudication Officer hearing took place on 18 August 2021 and a Decision was issued on 15 March 2022. Both parties appealed the Decision of the Adjudication Officer to the Labour Court on 11 April 2022 in accordance with section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 14 July 2022. The following is the Determination of the Court:



DETERMINATION :

Background to the Appeal

This is a double appeal by the Mr Michael Malone (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00033597/CA-00044706-001, dated 15^th March 2022) under the Organisation of Working Time Act 1997 (‘the Act’) and by Waterford City and County Council (‘the Respondent’). The Notices of Appeal were received by the Court on 11 April 2022. The Court heard the appeal on 14^th July 2022.

The Claim

The Complainant alleges that the Respondent has undercalculated his public holiday payments for the duration of his employment with it in so far as the Respondent has failed to include three hours per week and various allowances when calculating his public holiday pay. He is seeking retrospective payment of the shortfall back to the date of commencement of employment and compensation for the alleged breaches of the Act in this regard. He referred his complaint to the Workplace Relations Commission on 21 June 2021.

Summary of Complainant’s Submission

The Complainant commenced employment as a fulltime firefighter in 2005. He works a four-shift system over an eight-hour week cycle and his average working week is 42 hours. The Complainant submits that his “normal weekly pay” for the purposes of calculating his pay during periods of annual leave and for public holidays should be reckoned as €1476.21 calculated as follows. Basic rate €1,050.122 three hours expressed on payslip as basic wages €144.44, Sunday premium €161.36, Night premium €141.36, Saturday premium €2.33 and night duty meal allowance €6.60 giving a total of €1476.21 for four days and a daily rate of €369.05. The Complainant currently only receives €215.41 when he does not work a bank holiday leaving a shortfall of €153.64. The Complainant has been under paid since he started work and is seeking full retrospection back to the date he commenced as a full-time fire fighter. In support of the claim for retrospection back to 2005, SIPTU, on behalf of the Complainant opened to the Court a number of cases. SIPTU submitted that the three hours per week the Complainant gets paid for over and above the standard 39 hours are not overtime hours, as they are not paid at the standard overtime rate. However, they accept that those hours are paid at a rate above the basic rate.

Summary of Respondent’s Submission

The Respondent submits that it complies fully with sections 21 of the Organisation of Working Time Act 1997 and with the provisions of the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997. The Labour Court has previously held in DWT0895 MCM Security Limited and Tom Power that it is clear from the wording of Regulation 3(2) and Regulation 5(1) that pay in respect of overtime is not reckonable in the calculation of pay for public holidays. Under the four-shift agreement that is in place in this employment the Complainant works an average 42-hour week over an 8week cycle. Hour 40 is paid at time and a quarter of the basic rate, hours 41 and 42 are paid at time and one half of the basic rate. These are overtime hours which are why they are paid at a rate above the basic rate.

In respect of the allowances that the Complainant receives, these are not regular weekly allowances and are only paid if the shift is worked. The regulation in respect of including an allowance in the calculation states that it must be an allowance which “does not vary in relation to the work done by the employee”. In the case to hand the allowances are directly linked to the work done and are only paid if the Complainant works the night shift or works Saturday or Sunday, and therefore they do not fall to be included in the calculation. The meal allowance is to compensate for an expense incurred and does not fall within the remit of the Act or the regulation.

Relevant Law

Calculation of Payment for Public Holidays

Section 21(1) of the Act provides as follows in relation to public holiday benefits:

• “(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.”

• “(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”.

Discussion

This Court has addressed the issue of the non-inclusion of overtime in the calculation of public holiday pay having regard to Regulation 5 of SI 475 of 1997. See, for example, the Court’s Determination in MCM Security Limited v Tom Power DWT0895 where the Court stated:

• “It is clear from the wording of both Regulation 3(2) and Regulation 5(1) that payment in respect of overtime is not reckonable in the calculation of pay for public holidays.”

The Complainant is in receipt of four allowances which he submits ought to be reckonable for the purposes of calculating payment for public holidays: a night duty meal allowance of €3.30 per night, Night duty allowance €141.36, Sunday premium allowance €161.56 and Saturday premium allowance €2.33. In the Court’s judgment, none of these allowances are comprehended by Regulation 3(2). The night duty meal allowance compensates for a cost incurred. The other allowances vary in so far as they are only payable when the Complainant actually works the particular shift.

Conclusion

For the reasons set out in the body of this Determination, the Complainant’s claim for retrospective payment of alleged underpayment for public holidays back to the date of commencement of employment fails. It is the Court’s judgment that the Respondent has properly calculated the Complainant’s pay in respect of the public holidays that fell during the cognisable period comprehended by the claim having done so in accordance with SI 475 of 1997. The claim that the calculation of the Complainant’s public holiday pay for the purposes of the Act should include regular and rostered overtime and an amount in respect of the allowances he is in receipt of, has not been made out.

The decision of the Adjudication Office is set aside. The Respondent’s appeal is upheld

The Court so determines

	Signed on behalf of the Labour Court
	Louise O'Donnell
CN	______________________
3 August 2022	Deputy Chairman