ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00045921

Parties:

Complaint:

Date of Adjudication Hearing:  19/04/2024

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This complaint pursuant to Section 27 of the Organisation of Working Time Act 1997 was referred under Section 41 of the Workplace Relations Act 2015 to the Workplace Relations Commission (hereinafter ‘WRC’) on 22nd May 2023.  Following delegation to me by the Director General, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  This complaint was heard by remote hearing on 29th September 2023 and settled subject to implementation.  However, the Complainant contacted the WRC to seek a further hearing and the matter was rescheduled on 15th March 2024 and adjourned until 19th April 2024 to accommodate a witness for the Respondent.  No binding agreement had been entered.  The Complainant was self-represented and was assisted by a Polish Interpreter.  The Respondent was represented by IBEC and a HR Business Partner attended on its behalf.  There was consent on behalf of the Respondent to amending its name from ‘Aryzta Food Solutions Ireland Unlimited Company ’ to its legal name, being ‘Aryzta Bakeries Ireland Unlimited Company’.  Comprehensive supporting documentation was submitted on behalf of both Parties.  The matter was heard in public and the Parties were made aware that their names would be published within this decision.  All of the evidence was taken under oath and is fully considered herein.

Background:

The Complainant claimed payment for three public (bank) holidays whilst on certified sick leave from his employment with the Respondent.  The Respondent conceded that the Complainant had not been paid in respect of these public holidays when they fell due but had discharged same after referral to the WRC.  It had also offered the Complainant an additional goodwill payment of €400 which he had rejected contending that he was entitled to a larger sum of compensation owing to the lengthy delay.

Summary of Complainant’s Case:

The Complainant commenced employment with the Respondent as a Maintenance Technician on 12th June 2019.  He suffered a workplace accident over four years ago which is subject to ongoing civil proceedings.  As a consequence, he has taken periods of certified sick leave whilst undergoing surgery.  He is currently working two days a week.  His claim is for pay for three public holidays falling on 25th December 2022, 26th December 2022 and 1st January 2023, during a period of certified sick leave.  He accepted that since referral of this complaint to the WRC on 22nd May 2023, on 24th September 2023, the Respondent fully discharged pay of circa €900 for these public holidays.  However, he refused to accept an additional payment of €400 as a goodwill gesture in satisfaction of this complaint in circumstances where he had to repeatedly follow up before referring this complaint to the WRC to obtain payment taking nine months.  This caused him financial hardship in circumstances where he was already subject to a significant drop in income owing to his sick leave and has a family to support. 

Summary of Respondent’s Case:

The HR Business Partner confirmed that it was not in issue that there had been a delay in the Complainant receiving payment for the aforesaid public holidays.  Around the time they became due she had recently joined the Respondent and did not have access to the former HR Business Partner’s email account.  She had not been appraised of the fact that the Complainant was on certified sick leave.  Shortly thereafter, the Complainant’s Supervisor had left the Respondent’s employment.  As soon as she became aware of the Complainant’s queries from January 2023, she had sought clarification from the Complainant and other staff to confirm precisely what public holidays were outstanding.  The Complainant had received full pay for an eight week period under the Respondent’s sick-pay scheme and she had been informed that he had been paid for all public holidays from his Supervisor.  However, he would have been entitled to an additional day’s pay for each public holiday falling within that period.  It appears that payment for public holidays in addition to his sick pay had caused confusion internally.  As confirmed in an email of 23rd August 2023, she eventually ascertained that pay for these public holidays was outstanding and payment of circa €900 was made in the September payroll.  The delay was owing to an administrative oversight and was nothing personal.  She apologised to the Complainant on behalf of the Respondent and confirmed that he had been offered an additional sum of €400 as a goodwill gesture which he had declined.  She confirmed that this remained as an open offer.

Findings and Conclusions:

The Complainant claimed payment for three public holidays falling whilst on certified sick leave from his employment with the Respondent.  The Respondent conceded that he had not been paid in respect of these public holidays prior to the referral of this complaint and has since discharged same.  The Complainant rejected an additional goodwill payment of €400 and seeks a larger sum of compensation.  I must determine whether the Respondent was in breach of Section 21 of the Organisation of Working Time Act 1997 and if so, assess what compensation is just and equitable in the circumstances. 

The applicable portions of Section 21 of the Act providing for public holiday entitlement are as follows:

“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.”  Subsections 2-4 are not relevant to this complaint.

“(5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule.”

The Third Schedule provides exceptions for employees who would otherwise not be entitled to public holiday entitlement including employees on certified sick leave of up to 26 weeks, and as is the position in the instant case of up to 52 weeks if sick-leave is owing to an injury sustained in an occupational accident [within the meaning of Chapter 10 of Part II of the Social Welfare (Consolidation) Act 1993].

Applying the uncontested evidence to the aforesaid provisions, I am satisfied on the balance of probabilities that the Respondent breached Section 21 of the Organisation of Working Time Act 1997 by not paying the Complainant an additional day’s pay for each of the public holidays falling due.  It is unfortunate that this occurred at a time of personal and financial difficulty for the Complainant.  However, I am satisfied that this was not an intentional breach and was owing to administrative oversight arising from a combination of factors including the fact that the Complainant was on certified sick leave and there was both a change in HR Personnel and his Supervisor.  In particular, the correspondence demonstrated that the HR Business Partner had been actively following up from January 2023.  I commend the Respondent for the reasonable manner in which this complaint was met.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in accordance with the requisite redress provisions.  For the aforesaid reasons, I find this complaint to be well-founded.  Section 27(3) of the Organisation of Working Time Act 1997 provides: “A decision of an adjudication officer under Section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely: (a) declare that the complaint was or, as the case may be, was not well founded, (b) require the employer to comply with the relevant provision, (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”  Noting that the Respondent has discharged payment for the Complainant’s public holiday entitlement of circa €900 and that the delay was owing to administrative oversight, I am satisfied that compensation of €400 is more than just and equitable in circumstances.  Accordingly, I direct that the Respondent pays €400 to the Complainant within 42 days herewith.

Dated: 12th of August 2024

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words: Sections 21, 27 and the Third Schedule of the Organisation of Working Time Act 1997 –Public Holiday entitlement - administrative oversight - just and equitable compensation