ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002532
Complaint(s)/Dispute(s) for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
Date of Adjudication Hearing: 20/09/2016
Workplace Relations Commission Adjudication Officer: Michael McEntee
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and or section 27 of the Organisation of Working Time Act, 1997 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
I have not been paid for two public holidays namely St Patrick's Day - 17th March 2016 and Easter Monday 28th March 2016. I have contacted my employer numerous times in relation to this and he has ignored every communication. I informed him that I would be making a complaint through the Workplace Relations Commission as is my right. The Complainant is absent due to an alleged workplace injury on the 6th January 2016
Respondent’s Submission and Presentation:
The Complainant fails to satisfy Section 21(4) of the Organisation of Working Time Act 1997 quoted below.
(4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.
The Complainant, having been absent since the 10th January 2016 , fails to satisfy the five week rule for the 17th March 2016 and the subsequent 28th March 2016 Public Holiday.
Any liability under the Third Schedule (Sections 1 & 2) of the Act was denied.
The issue of the alleged workplace accident was likely to be the subject of High Court proceedings.
Section 41(4) of the Workplace Relations Act 2015 and or Section 27 of the Organisation of Working Time Act, 1997 require that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.
Issues for Decision:
Does the Complainant have an entitlement to payment for the two Public Holidays referred to namely St Patrick's Day - 17th March 2016 and Easter Monday 28th March 2016?
Legislation involved and requirements of legislation:
Organisation of Working Time Act 1997 Section 21 (4 & 5) and Third Schedule (Sections 1 &2)
The relevant sections from the Third Schedule of the Act are quoted below.
Each of the following are the cases mentioned in section 21 (5) of absence by the employee concerned from work immediately before the relevant public holiday:
- such an absence, in excess of 52 consecutive weeks, by reason of an injury sustained by the employee in an occupational accident (within the meaning of Chapter 10 of Part II of the Social Welfare (Consolidation) Act, 1993),
- such an absence, in excess of 26 consecutive weeks, by reason of an injury sustained by the employee in any accident (not being an accident referred to in paragraph 1) or by reason of any disease from which the employee suffers or suffered,
The Complainant by his own evidence was absent from the 10th January 2016 due to an alleged medical condition described as caused by a work related matter. The medical nature of the absence was acknowledged by the Respondent’s representative while resolutely denying any lability for the condition.
Accordingly I find that this absence is provided for in Schedule Three.
I award payment for the two Public Holidays namely 17th March 2016 and Easter Monday 28th March 2016.
Dated: 7th December 2016