DWT233

1. Appeal Of Adjudication Officer Decision No(S) ADJ-00033760, CA-00044705-001.

BACKGROUND:

2. This is an appeal by the Mr Michael Morrin (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00033760) under the Organisation of Working Time Act 1997 (‘the Act’) The Notices of Appeal were received by the Court on 11 August 2022. The Court heard the appeal on 2^nd December 2022.




DETERMINATION:

The Claim

The Complainant alleges that the Respondent has undercalculated his annual leave payments for the duration of his employment with it in so far as the Respondent has failed to include three and half hours per week of regular rostered overtime and an eating on site allowance which he receives for five days a week, when calculating his public holiday pay. He is seeking retrospective payment of the shortfall for twelve years and compensation for the alleged breaches of the Act in this regard. He referred his complaint to the Workplace Relations Commission on 21^st June 2021. The Cognisable period for the purpose of the Act is 22^nd December 2020 to 21^st June 2021.

Summary of Complainant’s Submission

The Complainant commenced employment as a general operative in 1996. He was appointed to the position of Driver A in March 2010 and regular rostered overtime forms part of his terms and conditions of employment. He is also in receipt of an eating on site-allowance. 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 €944.12 calculated as follows, basic rate €653.83, regular rostered overtime €62.85 per week and €9.50 eating on site allowance giving a total daily rate of €193.66. The Complainant currently only receives €134.12 when he takes a day’s annual leave leaving a shortfall of €59.54 per days holiday which he is seeking to have backdated for 12 years. The Union on behalf of the Worker submitted caselaw both Irish and European which it contends supports the Complainant’s case. The Union also citied various EU treaties. The Union submitted that the Complainant’s rights have been breached and that the Respondent has failed to fulfil their obligations. The Union is claiming the full losses back twelve years which they submit is consistent with the principles of effectiveness and the right to an effective remedy

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 Annual leave. This case has not been overturned, and the Respondent and the Court are entitled to rely on same. The cases citied by the Complainant are not relevant to the issue before the Court. 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 annual leave and 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 a meal allowances which he submits ought to be reckonable for the purposes of calculating payment for public holidays. In the Court’s judgment this allowance is not comprehended by Regulation 3(2) as it is an allowance that compensates for a cost incurred.

Conclusion

For the reasons set out in the body of this Determination, the Complainant’s claim for retrospective payment of alleged underpayment for annual leave back to twelve years fail. 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 annual leave pay for the purposes of the Act should include regular and rostered overtime and an amount in respect of the allowance he is in receipt of, has not been made out. In coming to that decision, the Court is also relying on a number of similar cases that have been before the Court in recent times, Nothing significant arose in this case that would persuade the Court to distinguish this case.

The decision of the Adjudication Office is upheld. The appeal fails.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
IK	______________________
6 January 2023	Deputy Chairman