Complainant

Respondent

Parties

Brian  Murphy

Road Safety Operations Ireland,  t/a GoSafe

Representatives

Self

Antoinette Cunningham, Ibec

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-00071575-001

14/05/2025

The Complainant commenced employment with the Respondent on 17/12/2021 as a monitoring operator.  He is paid €1,800 gross per fortnight and works 39.40 hours per week.  He submitted a complaint to the WRC on 14/05/2025 in relation to issues about his public holiday entitlements and the Respondents’ application of the provisions of the Organisation of Working Time Act, 1997.

The Respondent denies the claims and submits that they are fully compliant with the provisions of the Act.

The Complainant gave evidence on affirmation.  He clarified that his complaint relates to two concerns he has in relation to how the Respondent applies Section 21 of the Organisation of Working Time Act, 1997.

His first concern is that when he is rostered to work on a Public Holiday and he requests to take leave on that day, that leave is given as per Section 21 (1) (d) of the Act, i.e. he is given an extra day pay.  The Complainant submits that this is incorrect and he should be getting a paid day off in line with Section 21(1) (a) of the Act.  It is the Complainant’s position that what he should be granted is a paid day off under Section 21(1)(a) and his annual leave day should remain untouched.  He submits that public-holiday pay is separate from annual-leave pay, and the Respondent is treating it as if they overlap.

His second concern is in relation to how the Respondent treats Christmas Day.  If he is rostered to work Christmas day and he is not required due to the number of volunteers, his hours are then moved to his next available shift, - his day is moved to a rest day.  The Complainant submits that this should also be treated the same as outlined in Section 21 (1) (a) of the Act, i.e., he should be getting a paid public-holiday day off.  The Complainant believes that his public-holiday entitlement must be a paid day off, and not an extra day’s pay when he was originally scheduled to work and available to work.  The Complainant submits that taking annual leave on a public holiday should not affect his public-holiday entitlement.  It is the Complainant’s position that the Respondent incorrectly applies 21(1)(d) (extra day’s pay) instead of 21(1)(a) (paid day off). 

The Complainant believes that Section 21 of the Act “is subject to provisions” and the Respondent is not correct when they apply Section 21 (1) (d) which is additional day’s pay.  This means that you would be paid for 18 hours which is not correct.  The Complainant believes that when an employee applies for annual leave on a Public Holiday that they were required to work then that employee should be given a paid day off on that day as per Section 21 (1) (a).  The provision that if the day on which a public holiday falls is a day on which the Complainant would, apart from the subsection, be entitled to a paid day off, then paragraph (a) is omitted and the Respondent cannot select (a) in that scenario.

The Respondent confirmed the Complainant’s dates of employment as a Monitoring Operator.  The Complainant raised an initial query in relation to Public Holidays on 18/03/2025 and this was Respondent to by the Respondent’s HR department.  The Respondent sought clarification and the Respondent believes that the Complainant’s issue is that when annual leave is taken on a public holiday that 9 hours should not be deducted from the annual leave allocation.

It was submitted on behalf of the Respondent that there is no ambiguity in relation to how the Respondent apples Section 21 (1) as it applies to Public Holidays.   Firstly, the contract of employment sets out that the service provided by the Respondent operates 24 hours a day, 7days a week and 365 days a year.  An employee can be rostered to work a minimum of 39 hours but not exceeding 48 hours and the allocation of shifts must be aligned to the needs of the business.  

Secondly, the contract of employment specifically states that an employee will be afforded public holiday entitlements pursuant to the Organisation of Working Time Act, 1997 and notes that if an employee is required to work on a public holiday, “… in return for which you shall be paid double time”.  The employee handbook is more prescriptive ant states as follows:

“In the event that you are required to work on a public holiday, the following will apply:

·        You will be given a minimum of two weeks’ notice of the company requirements to work the public holiday

·        If you are working on a public holiday, you will be paid double time

·        If the event that you do not work on a public holiday you will be paid for 8 hours

·        If you are rostered to work on a public holiday and wish to take it as a day of leave, you are required to request this day using the normal leave procedure.  This will be paid as 8 hours holiday pay and 8 hours public holiday.  A holiday will be deducted from your annual leave entitlement”. 

It is the Respondent’s position that this arrangement has been in place since its operations began in 2010 and continues to work well.  The Complainant is the only employee who has expressed his dissatisfaction with the arrangements.

It was also submitted on behalf of the Respondent that the wording in Section 21 (1) of the Act makes it clear that the entitlement to public holidays is “Subject to the provisions of this section….” and, despite the Complainant’s assertion that it is it otherwise, the only section is Section 21.  The Respondent submits that it has fully complied with the provisions of Section 21 of the Act as the Complainant has not only received notice of how the Respondent applies Section 21 but he has also received his entitlements.

In relation to the Complainant’s issue with the manner in which the public holiday entitlement is applied on Christmas Day the Respondent provided the hearing with a copy of the options available to employees who are (1) not scheduled to work, (2) not scheduled but volunteers to work, (3) scheduled to work and completes 4 hours of the shift and (5) scheduled to work, completed 4 hours and wants an additional shift.   

The Respondent clarified that if an operator is scheduled to work on Christmas Day and does not work it then this shift moves onto another day in the operator’s schedule.   While an operator is paid treble time for hours worked on Christmas day this payment does not move with the shift.

It is the Respondent’s position that the options available to employees in relation to Christmas Day have been in place since 2010 and are working well.  These options were developed in consultation with employees and are designed to provide a family friendly workplace.   The Respondent notes that all other operators are happy with the options available.

The Respondent’s position is that the provisions of Section 21 of the Act are clear, the Complainant is 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:…”

The Complainant has received his public holiday entitlements as provided for in the Act and also in accordance with the provisions of his contract of employment and employee handbook.

At the hearing the Complainant clarified the issues that give rise to his complaint under the Organisation of Working Time Act, 1997:

1.      When he is rostered to work on a Public Holiday and he requests to take leave on that day, that leave is given as per Section 21 (1) (d) of the Act, i.e. he is given an extra day’s pay.  The Complainant submits that this is incorrect and he should be getting a paid day off in line with Section 21(1) (a) of the Act.

2.      When he is rostered to work a Christmas day and he is not required due to the number of volunteers, his hours are then moved to his next available shift, - his day is moved to a rest day.  The Complainant submits that this should also be treated the same as outlined in Section 21 (1) (a) of the Act, i.e., he should be getting a paid day off.

The Complainant is seeking adjudication under Section 27 of the Organisation of Working Time Act 1997 (as amended). 

A decision of an Adjudication Officer under Section 41 of the Workplace Relations Act shall do one or more of the following:

(i)               Declare the complaint was or was not well-founded.

(ii)              Require the Employer to comply with the relevant provision.

(iii)            Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years (b) having in good faith opposed by lawful means an act that is unlawful under this Act,

The Complainant disputes the manner in which the Respondent has addressed his entitlement to annual leave in respect of a public holiday on which he is required to work. The Complainant contends that the Respondent has applied the provisions of Section 21(1)(d) of the Organisation of Working Time Act 1997—granting an additional day’s pay—whereas he maintains that he should instead receive the benefit outlined in Section 21(1)(a), namely, a paid day off on the public holiday itself.

The evidence indicates that the Respondent’s approach to the treatment of public holidays is clearly set out in the Complainant’s contract of employment and in the employee handbook. The Respondent’s practice is consistent with both the statutory framework and its contractual obligations.  I have concluded that the Respondent made a proper determination under Section 21(1) (a)-(d) and the Complainant was properly notified of how the Respondent would apply this section. Accordingly, I am satisfied that there has been no breach of the Organisationof Working Time Act 1997, and I therefore find that this complaint is not well founded.

The Complainant further raises another issue regarding the Respondent’s practice where an employee, including the Complainant, is rostered to work on Christmas Day. In such cases, if the employee is not required to work, the Respondent reallocates those hours to an alternative shift. The Complainant asserts that in these circumstances, the Respondent ought to apply Section 21(1)(d) of the Act, granting an additional day’s pay.

The Respondent has in place a comprehensive and well-establishedagreement governing the options available to employees rostered to work on Christmas Day. Having considered the evidence and submissions, I am not satisfied that the Complainant has advanced a statutory claim within the meaning of the Act. Consequently, I find that thiscomplaint is not well-founded.

For the reasons outlined above I have decided that this complaint is not well-founded.

Public Holiday – application of Section 21 (1) of the OWT Act, 1997.