ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014060
Parties:
| Complainant | Respondent |
Anonymised Parties | A Worker | A Facilities Management Company |
Complaint:
Act | 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 | CA-00018475-001 | 12/04/2018 |
Date of Adjudication Hearing: 27/06/2018
Workplace Relations Commission Adjudication Officer: Stephen Bonnlander
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant referred his complaint on 12 April 2018. On 25 June 2018, the Director General delegated the complaint to me for hearing and decision. I held a joint hearing with the parties on 27 June 2018. |
Summary of Complainant’s Case:
The complainant was dismissed from the respondent’s employment on 16 November 2017. His outstanding holiday entitlements were paid in April 2018, and he also received his P45 form at the same time. The P45 gives 1 January 2018 as the date of cessation of employment. In the complainant’s payslips, payment for bank holidays was taken off the balance of his payments, in the amount of €265.20, representing 24 hours of work. The complainant also queried “back pay” in the amount of €353.60, which he received and which he was unclear about. The complainant’s representative also argued at the hearing of the complaint that for the purpose of determining eligibility for payment in lieu of public holidays, the reference period should start on 24 December 2017, and count back five weeks from there. The representative argued that the complainant, whilst being suspended, was still an employee prior to 16 November 2017 and that I should take this into account when making my determination. |
Summary of Respondent’s Case:
It is the respondent’s case that the pay for 24 working hours was in respect of the Christmas Day, St. Stephen’s Day and New Year’s Day public holidays. The respondent’s representative explained that the complainant, after his dismissal from the respondent’s employment, was not taken off its payroll system by reason of human error, and that the payroll software computed the complainant’s holiday pay automatically. The respondent argues that pursuant to S. 21(4) of the Organisation of Working Time Act, 1997, the complainant is not entitled to payment for these public holidays, because he did not work 40 hours in the preceding five weeks as per the provisions of the subsection. The respondent’s representative argued that the complainant’s period of suspension should not count towards considering his entitlements under S. 21(4), given that he did not work. The respondent confirmed that the €353.60 which the complainant queried was a payment due to him arising out of his suspension prior to his dismissal. |
Findings and Conclusions:
Section 21(4) of the Organisation of Working Time Act, 1997, states that (4) Subsection (1) [NB as regards payment entitlement for public holidays] 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. I accept the argument by the complainant’s representative that for the purpose of determining any possible entitlements of the complainant, time should run backwards from 24 December 2017, this being the day before Christmas day. Five weeks before that date is the 19 November 2017, three days after the complainant’s employment with the respondent was terminated, and the complainant no longer performed any work for the respondent. I therefore find that the respondent was correct in determining the complainant’s entitlement under the Act on his cessation of employment, and that the correct outstanding monies were paid to the complainant. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Based on the reasons set out in detail in the preceding section, I find that the complainant was paid correctly for his leave entitlements under S, 21 of the Organisation of Working Time Act, 1997, and that therefore the within complaint cannot succeed. |
Dated: 01/08/18
Workplace Relations Commission Adjudication Officer: Stephen Bonnlander
Key Words:
Organisation of Working Time Act, 1997 – holiday pay – entitlement to payment for public holidays – reference period for calculating such entitlements. |