FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : BOARD OF MANAGEMENT OF KILMEEN NATIONAL SCHOOL (REPRESENTED BY A.J.P. MC DONALD SOLICITORS) AND DEPARTMENT OF EDUCATION AND SKILLS - AND - JOYCE O' DRISCOLL (REPRESENTED BY RICHARD GROGAN & ASSOCIATES SOLICITORS) DIVISION : Chairman: Mr Foley Employer Member: Mr Murphy Worker Member: Mr Hall |
1. Appeal of Adjudication Officer Decision No: r-156209/157692-wt-15JOC.
BACKGROUND:
2. The Worker appealed her case to the Labour Court on the 25th January 2017, in accordance with Section 28(8) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 6 September 2017. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Joyce O’Driscoll (the Appellant), a Special Needs Assistant (SNA) employed at all material times in Kilmeen National School, against the decision of an Adjudication Officer in her claim against the Department of Education and Skills (the Respondent) under the Organisation of Working Time Act, 1997 (the Act).
The Adjudication Officer decided that the complaint of the Appellant was not well founded and that it falls.
The Appellant had appealed another decision of the Adjudication Officer but advised the Court at its hearing that only the within appeal remained,the second appeal having been withdrawn by the Appellant.
Preliminary Matter
The parties disagreed initially as regards the appropriate Respondent in the within matter. However, the parties confirmed at the commencement of the hearing of the Court their agreement that the Department of Education and Skills is the appropriate Respondent in the matter.
Position of the Appellant.
The Appellant contended that her contract of employment stated that she would be afforded work of 32 hours per week but that the Respondent had unilaterally reduced the hours she worked on 1stSeptember 2014 and again on 13thOctober 2014. The Appellant contended that while she did receive holiday pay and public holiday entitlements those entitlements were calculated by reference to the rate of pay she was actually receiving prior to when the holidays or public holidays fell rather than by reference to the rate of pay she would have been receiving if the number of hours she worked had not been reduced.
The Appellant specified that the appeal related to holidays taken in the period between 31stAugust 2014 and 31stMarch 2015 although she was unable to specify how many days' holidays she had enjoyed during that time period. The Appellant submitted that four public holidays fell in the period between 31stAugust 2014 and 31stMarch 2015 and that her appeal in respect of public holidays related only to those public holidays.
The Appellant accepted that she applied for and received compensation of €19,724.28 on 12thMarch 2015 as compensation in respect of the loss of hours suffered by her. The Appellant acknowledged that she was at all material times a member of a Trade Union recognised by the Respondent for negotiation in respect of terms and conditions of employment of SNA’s.
Position of the Respondent
The Respondent submitted that the Appellant received all of her entitlement to holiday pay and public holidays in the specified period. The Respondent submitted that the hours of SNA’s varied over time by reference to the demand forspecial needs support in schools and that in the case of the Appellant the need for special needs support fell in 2014. The Respondent submitted that compensation was paid to the Appellant in respect of the loss of hours in accordance with the terms of a collective agreement made with the Trade Unions recognised by the Respondent for negotiation in respect of the terms and conditions of employment which apply to SNA’s.
The Law
The Act at sections 20, 21 and 22 in relevant part provides as follows:
Times and pay for annual leave.
20.—
(2) The pay in respect of an employee’s annual leave shall—
( a) be paid to the employee in advance of his or her taking the leave,
- ( b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and
( c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee’s remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.
.
.
.
Entitlement in respect of public holidays.
- 21.— (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.
Public holidays: supplemental provisions.
- 22.— (1) The rate—
( a) at which an employee is paid in respect of a day off under section 21 , and
( b) of an employee’s additional day’s pay under that section,
shall be such rate as is determined in accordance with regulations made by the Minister for the purposes of that section.
- 3. (1) The normal weekly rate of an employee's pay, for the purposes of sections 20 and 23 of the the Act (hereafter in this Regulation referred to as the "relevant sections"), shall be determined in accordance with the following provisions of this Regulation.
- (2) If the employee concerned's pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be 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) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.
(3) If the employee concerned's pay is not calculated wholly by reference to any of the matters referred to in paragraph (2) of this Regulation, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum that is equal to the average weekly pay (excluding any pay for overtime) of the employee calculated over—
- ( a ) the period of 13 weeks ending immediately before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs,
- (2) If the employee concerned's pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be 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) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.
- ( b ) if no time was worked by the employee during that period, over the period of 13 weeks ending on the day on which time was last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.
4Appropriate Daily rate of pay ("the relevant rate")
- 4. The following, namely—
- ( a ) the rate at which an employee is paid in respect of a day off under section 21 of the Act,
( b ) the rate of an employee's additional day's pay under that section, and
( c ) the appropriate Daily rate of the employee's pay for the purposes of section 23 of the Act,
(each of which is referred to hereafter in these Regulations as "the relevant rate") shall be determined in accordance with the subsequent provisions of these Regulations.
- ( a ) the rate at which an employee is paid in respect of a day off under section 21 of the Act,
- 5. (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,
( b ) in any other case, the relevant rate in respect of that public holiday shall be the sum that is equal to the average Daily pay (excluding any pay for overtime) of the employee calculated over—
- (i) the period of 13 weeks ending immediately before that public holiday,
- ( 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,
- (ii) if no time was worked by the employee during that period, the period of 13 weeks ending on the day on which time was last worked by the employee before that public holiday.
- ( a ) in the case the employee's pay is calculated wholly be 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 one-fifth of the sum 9including 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 in respect of the normal weekly hours last worked by the employee before that public holiday,
( b ) in any other case, the relevant rate in respect of that public holiday shall be the sum that is equal to one-fifth of the average weekly pay (excluding any pay for overtime) of the employee calculated over—
- (i)the period of 13 weeks ending immediately before that public holiday,
- if not time was worked by the employee during that period, the period of 13 weeks ending on the day on which time was last worked by the employee before that public holiday:
- 5. (1) If the employee concerned works or is normally required to work during any part of the day which is a public holiday, then—
There is no dispute between the parties that the Appellant’s hours of work were reduced in September and October 2014. The circumstances of those reductions are not a matter for the Court in the within appeal. The key factual matter for the Court is that at the time of the taking by her of any holidays or the fall of a public holiday in the period between 31stAugust 2014 and 31stMarch 2015 her entitlements to pay were calculated by reference to the rate of pay which she was paid prior to the taking by her of the holidays or the fall of the public holiday. This is accepted by both parties as the factual position.
The within appeal asks the Court to interpret the Regulations of 1997 on the basis of what the Appellant contends should have been rather than what actually was. Such a finding by the Court would be illogical and beyond any reasonable application of those regulations. The regulations comprehensively set out the mechanisms to ensure that payments on public holidays or during holidays are calculated by reference to the rate of pay in payment prior to the taking of the leave or the fall of the public holiday.
It is plain that the Appellant’s entitlements to holiday and public holiday pay were calculated on the basis of what she was actually paid prior to the taking of holidays or the fall of public holidays. The Regulations of 1997 clearly oblige the respondent to make such calculations by reference to the factual reality of what the Appellant was paid prior to her taking holidays or the fall of public holidays.
In all of the circumstances the Court finds that the Appellant received all of her entitlements arising from the Act on the occasion, unspecified, of her taking holidays in the period between 31stAugust 2014 and 31stMarch 2015 and similarly received her entitlements in respect of public holidays falling within that period.
Determination.
The decision of the Adjudication Officer is affirmed and the appeal fails.
Signed on behalf of the Labour Court
Kevin Foley
19 September 2017______________________
JDChairman
NOTE
Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.