SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY AMICUS)
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Mr O'Neill
1. Appeal against Rights Commissioner's Decision WT19572/04/JC
2. The Claimant has been employed by the Company for ten years and was on certified sick leave from April 2003, to September 2003. Under the Company sick pay scheme, the Claimant received full pay from the 15th April 2003, to the 10th July 2003. During the period of sick leave there were four statutory Public Holidays and the Union contended that the Claimant was entitled to be compensated for these Public Holidays.
- The Company rejected the claim on the basis that the Claimant was paid for the days in question and that the Company had complied fully with its obligations under the act.
- The matter was referred to a Rights Commissioner for investigation and Recommendation. His findings and Recommendation issued on the 15th December, 2004, as follows:
“The claim was presented to the Rights Commissioner service on 20th April 2004 the six-month time limit covers the period 21st October 2003 to 20th April 2004. The claimant was on sick leave for the period covering the public holidays in question, i.e. 9th April 2003 to 19th September 2003.
Section 21 of the Organisation of Working Time Act provides that the employer determines which of the options applies in relation to any particular public holiday. Section 21(2) provides that an employee may, not later than 21 days before the public holiday concerned, request his or her employer to make a determination under subsection (1) in relation to a particular public holidays and notify the employee of that determination at least 14 days before that holiday. I am satisfied that it would not be reasonable to expect the claimant to make such a request while he was on sick leave and in any event a request is not mandatory. Due to the fact that the claimant was on sick leave the issue of a paid day off within a month of the public holiday was not an option. Accordingly, there were two options left to the employer to determine i.e. an additional day of annual leave or an additional day's pay. While the claimant did not receive an additional day's pay either during his sick leave or on his return to work I am satisfied that under the Act it is the employer who determines which option will apply in respect of each public holiday and that the employee may not insist on one option over another, unless a collective agreement or the terms and conditions of employment of the employee concerned determines which option and in what circumstances such an option is applicable. In this case there was no such provision in either a collective agreement or in the terms and conditions of employment of the claimant. In the circumstances it was the publication of the annual leave list, which the employer said was published by them early in January 2004, that confirmed that the employer was not going to implement the one remaining option i.e an additional day of annual leave.
Accordingly, I am satisfied that the failure to present the complaint within 6 months of the actual public holidays in question was due to reasonable cause, and I find that the time limit should be extended to include the period 21st April 2003 to 20th October 2003, as permitted under Section 27(5) of the Organisation of Working Time Act, 1997.
In relation to the substantive issue of whether the claimant is entitled to an additional day's pay, or and additional days annual leave in respect of the public holidays in question I find that the claim is well founded.
Section 19(2) addresses specifically the situation where a day that would be regarded as a day of annual leave, is not regarded as such, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness. No such specific provisions are contained in the Act in regard to public holiday entitlement of an employee who is in receipt of sick pay, in respect of public holidays that fall during his or her sick leave absence.
However, Section 21(1) of the Organisation of Working Time Act 1997 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:
(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 this case the claimant was entitled, through the sick pay scheme, to paid day off on three of the public holidays in question. Accordingly, and as provided for in Section 21 the option available to the employee, as determined by the employer, was one of the following:
a paid day off within a month of that day,
an additional day of annual leave,
an additional day's pay.
I find that the employer should comply with the provisions of Section 21 in respect of the three public holidays in question i.e., Easter Monday 21st April 2003; May Public Holiday - Monday 5th May 2003; June Public Holiday - Monday 2nd June 2003 by providing the complainant with (i) an additional day of annual leave or (ii) an additional day's pay. Option (i) or (ii) to be implemented by the employer within 6 weeks of the date of this decision".
On the 18th January, 2005, the Employer appealed the Rights Commissioner’s Recommendation to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 10th May, 2006.
The Claimant was on extended sick leave from 15th April 2003, until 19th September 2003. For the first 13 weeks of his illness – up to 10th July 2003- he received full pay pursuant to the company’s sick pay scheme. Under this scheme the social welfare benefit which the Claimant received was augmented by Respondent up to the equivalent of his normal basic pay.
The Claimant contends that he is entitled to be compensated for three public holidays which fell while he was on certified sick leave. In respect of each of the disputed public holidays the Claimant was paid a full days pay under the Respondent’s sick-pay scheme. The Respondent contends that by paying the Claimant for the days in question he had the benefit of a paid day off on the public holidays in question.
Conclusion of the Court.
It is clear to the Court that the payments which the Claimant received in respect of the public holidays at issue were part of his entitlement to sick pay under a collective agreement. Accordingly the days in question were offset against the Claimant’s total entitlement under the scheme. In these circumstances the Court cannot accept that the Respondent can treat these payments as also discharging its statutory obligation to the Claimant in respect of the public holidays in question.
The Court is also satisfied that the situation which arose in this case comes within the ambit of subsections (1) and (6) of Section 21 of the Act, which provide as follows:
- .—(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.
(6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work.
- ( a ) a paid day off on that day,
The Claimant was on paid sick leave on each of the public holidays at issue. Hence, apart from Section 21(1), he was entitled under the collective agreement to a paid day off on those days. In these circumstances it is clear from the plain wording- of the subsection that the Claimant is entitled to a benefit in respect of the public holidays in addition to his entitlement to a paid day off on the day under the agreement. It follows that by not providing the Claimant with such a benefit the Respondent contravened the Act. According the Decision of the Rights Commissioner in this case is correct.
The Decision of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Enquiries concerning this Determination should be addressed to Joanne O'Connor, Court Secretary.