SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
(REPRESENTED BY AN POST)
- AND -
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Mr O'Neill
1. Appeal of Rights Commissioner's Decision R-041338-WT-06/TB.
2. The Worker concerned has been employed as an auxiliary Postal Sorter since 1991 in the Dublin Mails Centre. He was on paid sick leave from work from the 14th November 2005 until the 29th December 2005.
The issue before the Court is a claim for paid leave in lieu of two public holidays, Christmas Day and St Stephen' s Day.
The claim was referred to a Rights Commissioner for investigation. His Decision issued on the 16th August 2006 in which he upheld the complaint and required the respondent (An Post) to provide the claimant with the options which are available as provided for in Section 21(1) of the Organisation of Working Time Act, 1997.
An Post appealed the Rights Commissioner's decision to the Labour Court on the 26th September 2006, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Court heard the appeal on the 18th January 2007.
3. 1.Management's position is that the Worker is entitled to one days basic pay in respect of each of the public holidays for which he was out sick and that this was remunerated to him, without deduction for Social Welfare benefit, by way of the Sick Pay scheme.
2.Management maintain that employees' contractual rights are inclusive of statutory rights and not additional to them.
4. 1.The Worker maintains that in accordance with the Organisation of Working Time Act, 1997, Section 21(1) he is entitled to the benefit of the two public holidays which fell while he was on sick leave.
The Claimant is employed as an auxiliary postal sorter at the Respondent's Dublin mail centre. He was on sick leave from 14th November 2006 until 29th December 2006. He received full pay pursuant to the Company's sick pay scheme in respect of this period.
The Claimant contends that he is entitled to be compensated for three (later amended to two) 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 contractual entitlement to sick pay. 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.
The clear import of these provisions is that where an employee is contractually entitled to a paid day off on a day which is a public holiday the granting of that day off with pay cannot subsume the employee's statutory entitlement in respect of the public holiday.
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 his contract of employment 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 contractual entitlement to a paid day off on the day. It follows that by not providing the Claimant with such a benefit the Respondent contravened the Act. Accordingly, 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
24th January, 2007______________________
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.