SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
HSE - MID WEST AREA
- AND -
(REPRESENTED BY IRISH HOSPITAL CONSULTANTS ASSOCIATION)
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Mr Nash
1. Appeal against Rights Commissioner's Decision WT16546/03/MR.
2. The claimant concerned holds an appointment as Consultant Surgeon under the HSE Mid West Area. The terms and conditions of his appointment are laid out in the Consultants Common Contract. The complaint relates to the fact that while the claimant was rostered to provide an on-call service for patients in Ennis General Hospital on St Patrick’s Day 2003 and had attended the hospital to deal with an emergency, the Board failed to compensate him adequately for his work on that day.
The issue was referred to a Rights Commissioner for investigation. He concluded that Section 21 of the Organisation of Working Time Act, 1997 could not“ reasonably be interpreted as giving an entitlement of an additional days’ pay or an additional day off to an employee who is called out to work on a public holiday in circumstances such as those applying in this case.”
The Rights Commissioner further stated that he was satisfied that” the on call arrangement for consultants, and in particular those applied in Mr Byrnes' case by the Mid Western Health Board are adequate, for the purposes of the Act, for dealing with both being on call on public holidays and being called out on such days.”
The claimant appealed the Rights Commissioner’s Decision to the Labour Court on the 2nd September 2005, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Court heard the appeal on the 22nd February 2006.
The Claimant, Gerard Byrnes, is a Consultant Surgeon who holds an appointment with the Health Service Executive, formally the Mid- Western Health Board (the Respondent). The terms of the appointment are set out in the Consultants Common Contract, and are common to all Hospital Consultants employed by the Respondent.
Under the terms of his contract the Claimant may be rostered to provide emergency treatment at the hospitals to which he is assigned at weekends or on Public Holidays, on which he would not normally be required to work. The Claimant was so rostered on 17th March 2003 (St Patrick’s Day) to provide emergency service to patients at Ennis General Hospital. He attended at the hospital on that day to deal with an emergency and remained there for approximately one hour.
The Claimant contends that by having attended for work on a public holiday he became entitled to compensation pursuant to s 21 of the Organisation of Working Time Act 1997 (the Act of 1997). The Respondent contends that the Claimant was adequately compensated under the terms of his contract for having attended at the hospital for the time in question. Pursuant to the Contract he was paid an extended duty allowance in respect of his all-call liability on the day in the amount of €31.47. He was also paid fees totalling €136.78 in respect of the patients seen by him during his attendance and was paid the appropriate travel allowance.
The matter was referred to the Rights Commissioner by way of a claim under the Payment of Wages Act 1991. At the hearing of the claim the Rights Commissioner took the view that the matter should, more properly, have been referred under the Act of 1997. As is recorded in his decision, the Rights Commissioner proceeded, with the consent of the parties, to hear the case under the Act of 1997. The Rights Commissioner found against the Claimant on the merits of the case. The IHCA, on behalf of the Claimant, appealed to this Court.
The Respondent submitted that the Rights Commissioner had no jurisdiction to entertain the Claimant’s complaint as it was submitted outside the time limited by s 27(4) of the Act of 1997. It submitted that, by extension, if the Rights Commissioner lacked jurisdiction to enter upon an investigation of the complaint this Court is similarly circumscribed. The Respondent told the Court that the complaint was submitted to the Rights Commissioner under the Payment of Wages Act 1991 and a hearing was arranged pursuant to that Act for 1st April 2004. At the hearing the Rights Commissioner indicated that the Complainant should have been made under the Act of 1997 and that he proposed to deal with the case pursuant to the provision of that Act. The Respondent told the Court that while it agreed to proceed in the manner proposed by the Rights Commissioner it reserved its right to raise the question of his jurisdiction to deal with the matter at a later stage. The Respondent contended that a complaint under the Act of 1997 was never presented by the to the Rights Commissioner, or if such a complaint was presented, the date of presentation was 1st April 2004, which was outside the time limited by s 27(4) of the Act.
The Claimant’s representative contended that the Respondent agreed to have the matter dealt with by the Rights Commissioner under the Act of 1997. He further submitted that, as the Respondent had not appealed against the decision of the Rights Commissioner to take jurisdiction in the case, it could not raise the matter now.
Having heard the submissions of the parties on this preliminary point the Court reserved it decision and proceeded to hear the substantive dispute.
Determination – Preliminary
Section 27(4) of the Act provides that a Rights Commissioner may not entertain a complaint under that section unless it is presented within six months of the contravention to which the complaint relates. It is clear from the decision inRoyal Liver v Macken and OthersHigh Court, Unreported, Lavin J November 2002, that where a complaint relates to an entitlement in respect of a public holiday, the time limit commences on the date of the public holiday. It is also clear from that judgement that the time limit goes to the question of jurisdiction. Hence, if the Rights Commissioner entertains a complaint which is presented out of time he or she acts without jurisdiction. Lavin J also made it clear that in such circumstances the Court is equally deprived of jurisdiction to adjudicate on the complaint by way of appeal.
In this case the Claimant presented a complaint to a Rights Commissioner within the six month period alleging what in fact amounted to a breach of the Act of 1997. However, he did so using the form appropriate for a complaint under the Payment of Wages Act 1991. On the facts of the case a claim under that Act may have been maintainable on the basis that the failure of the Respondent to pay the Claimant an extra days pay in respect of the Public Holiday constituted an unlawful deduction.
It is clear, however, from the decision of the Rights Commissioner that both parties agreed to deal with the case as if it were a complaint under the Act of 1997. On that account the Claimant, in effect, withdrew his complaint under the Payment of Wages Act 1991. There is nothing in the decision of the Rights Commissioner to indicate that the Respondent qualified its consent to the matter being dealt with under the 1997 Act or that it reserved its position in any way in that regard.
In the Court’s view it would be unconscionable to allow the Respondent to resile from its agreement to allow the matter to be dealt with by the Rights Commissioner under the Act of 1997 in circumstances where, on the faith of that agreement, the Claimant did not proceed with his claim under the Payment of Wages Act 1991. The Court is satisfied that the Claimant submitted to the jurisdiction of the Rights Commissioner and did so willingly. The Court is further satisfied that the assertions of fact and law, on which the original complaint to the Rights Commissioner was grounded, relate in substance to an alleged contravention of the Act of 1997.
In these circumstances the Court is satisfied that the Respondent cannot be permitted, at this stage, to impugn the jurisdiction of the Rights Commissioner to hear the complaint or that of this Court to determine the appeal.
The Claimant contends that he did not receive a day off with pay on 17th March 2003 as he was required to work on that day. He contends that the length of time during which he was required to attend at work is immaterial and that if he attended at all he could not be held to have had a day off on that day. In these circumstances the Claimant contends that he is entitled to a day off in lieu of the Public Holiday or an extra day’s pay. He contends that his working time should be measured from the time he received the call requiring his attendance and not from the time at which he commenced work at the hospital. In support of that proposition he relied on the decision of the House of Lords inPook (HM Inspector of Taxes) v Owen AC 244.
The Respondent contends that the Claimant was adequately compensated within the terms of his contract for the hour spent at the hospital on the day in question. It contends that he was paid an allowance of €31.47 in respect of being on-call and that he was paid a fee €136.79 in respect of two patients which he had seen while at the hospital. He was also paid a full days salary for the day. The Respondent also told the Court that the terms of the Claimant Common Contract entitled the Claimant to fixed annual allowances in respect of his liability to remain on-call at certain periods. The Respondent submitted that only the time actually worked can count as working time and in support of that proposition it referred the Court to the Judgment of the ECJ in C-303/98Sindicato de Medicos de Asistencia Publica (Simap) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana ECR 1- 7963 and C-151/02Landeshauptstadt Kiel v Norbert Jaeger ECR 1-08389.
Conclusion of the Court.
Both sides cited case law on what is to be regarded as working time. This term is defined by the statute itself. S 2(1) of the Act of 1997 provides: -
- “working time’’ means any time that the employee is—
(a) at his or her place of work or at his or her employer’s disposal,
(b) carrying on or performing the activities or duties of his or
It is settled law that where a statue defines its own terms and makes what has been called its own dictionary, a Court or Tribunal may not depart from the definition given by the statute and the meaning assigned to the words used in the statute. The definition of working time in the Act covers only time during which an employees is actually carrying out the activities of his or her work. Accordingly only the one hour which the Claimant spent at the hospital on the day in question can be regarded as working time.
The Claimant nonetheless contends that on a literal construction s 21(1) entitles him to an additional full days pay or an additional full days extra leave. This Section provides as follows:-
- “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 ifparagraph (a)
were omitted therefrom.
In the Court’s view the legislature could never have intended that a person who attends work for one hour (or as the Rights Commissioner posited for five minutes) in a day is entitled to an additional full days pay or an additional full day off in lieu of the time worked. In the Court’s view such a result would be absurd and could not reflect the legislative intention.
Section 5 of the Interpretation Act 2005 now incorporates into statute law the common law rule of construction which allows a departure from the seemingly literal interpretation of words in a statute where to do so would produce an absurd result. That section provides as follows: -
- 5.—(1) In construing a provision of any Act (other than a provision
that relates to the imposition of a penal or other sanction)—
(a) that is obscure or ambiguous, or
(b) that on a literal interpretation would be absurd or would
fail to reflect the plain intention of—
- (i) in the case of an Act to whichparagraph (a)of the
definition of “Act” insection 2(1)relates, the Oireachtas, or
(ii) in the case of an Act to whichparagraph (b)of that
definition relates, the parliament concerned,
the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.
- (i) in the case of an Act to whichparagraph (a)of the
The entitlement of employees in respect of Public Holidays has long been enshrined in law through a number of statutes starting with the Holiday (Employees) Act 1939. That Act was repealed and replaced by the Holiday (Employees) Act 1961, which in turn was repealed and replaced by the Holiday (Employees) Act 1973. That latter Act was repealed in its entirety by the Act of 1997.
The Act of 1997, according to its long title, was enacted, inter alai, to give effect in domestic law to Council Directive 93/104/EC on the Organisation of Working Time. While the Directive makes provides for the harmonisation of laws on annual leave it makes no such provision in respect to public holidays. Thus, while the law of the Community now governs the entitlement of workers to annual leave, entitlements in respect of public holidays are a matter of purely domestic law. Section 21 of the Act of 1997 was enacted in terms which are of similar import to s 4 of the Holiday (Employees) Act 1973. It therefore restated the pre-existing law rather than introduced new requirements.
On-call arrangements, such as that at issues in this case, are common in industry generally particularly in maintenance or similar type employments. The accepted practice in respect of call-outs on public holidays has always been to pay the person concerned their full days pay in respect of the holiday, an allowance for being on-call and a payment in respect of the time actually worked on the day (subject in some cases to a minimum number of hours). It has never been the practice to afford employees who are on-call and who are called in for short periods on a public holiday an entitlement to a full additional days pay or a full additional day off irrespective of the number of hours worked.
That is, in effect, the same type of arrangement as applies to Hospital Consultants under their Common Contract. It has always been accepted by both sides of industry, and by this Court, that this type of arrangement complied with the obligations imposed on employers by the former statutes relating to public holidays. In that regard it is significant that the Common Contract for Hospital Consultants was negotiated by the Claimant’s Trade Union and provides that entitlements in respect of public holidays will be in accordance with the Holiday (Employees) Act 1973. There is no evidence before the Court to indicate that the parties to the Common Contract ever believed that in order to comply with that provision it is necessary to compensate Consultants called out in emergencies in the manner now claimed.
It is to be assumed that in enacting the Act of 1997 the Oireachtas was aware of the consistent interpretation which had been placed on s 4 of the Holiday (Employees) Act 1973, and the earlier statutes of similar effect. There is nothing in the Act of 1997 to suggest that in enacting s 21of that Act the legislature intended to bring about a change in the law of such magnitude as that contended for by the Claimant. Had the Oireachtas intended to bring about such a change in the law it would have done so in clear and unambiguous terms.
The Claimant received an on-call allowance of €31.47 in respect of 17th March 2003 and a further €136.78 in fees in respect of his attendance for one hour at the hospital. In addition he receives a flat-rate annual payment of €3,651 in relation to his liability to remain on-call to deal with emergencies and further payment of €5,278 per annum in respect of his particular rota. The payment to remain on-call cannot be completely disregarded in considering the compensation paid in attending at work during the period to which that payment relates.
In all the circumstances the Court concurs with the conclusion reached by the Rights Commissioner and is satisfied that the package of benefits available to the Claimant in respect of attendance at work during public holidays on which he is on-call, including 17th March 2003, adequately meet the requirements of the Act. The decision of the Rights Commissioner is accordingly affirmed and the appeal herein is disallowed.
Signed on behalf of the Labour Court
13th March, 2006______________________
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.