Complainant

Respondent

Parties

Laurent  Gedin

Apple Distribution International Ltd

Representatives

 J.W. O'Donovan LLP

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-00069783-001

05/03/2025

The complainant submits that he has not received his public holiday entitlement.

Preliminary Issue:

The complainant agreed to the submission from the respondent to change of the name of the respondent to Apple Distribution International Ltd.

Substantive Issue:

The complainant submits that he did not receive his public holiday entitlements for public holidays of 05/08/2024 and 28/10/2024 during a period of suspension.  The requirement for him to be available during suspension interfered with his ability to take the benefit of his public holiday.  He raised this as a grievance.

The complainant evidence was he was on suspension with pay from 22/06/2024 until 06/11/2024 and his grievance of 23/01/2025 was not upheld and there was an appeal.  He had been on suspension during the August public holiday and October public holiday but he had previously volunteered to work the public holiday of August and October.  He had volunteered and had worked the May 2024 public holiday, he had not volunteered to work  the June public holiday and he volunteered to work the public holiday of 05/08/2024 and 28/10/2024.   Working public holidays is not normal and he understood that even if he volunteered he might not get to work as the respondent might say that he is not needed.  When he would volunteer he would get a response and if he is suspended he is not at work and needs to be available.  When he volunteered he was not suspended at the time and got normal pay for August and October public holiday and did not get paid the appropriate amount for being rostered to work.

CROSS EXAMINATION OF COMPLAINANT:

The complainant confirmed he did not work the August or October 2024 public holidays and was paid normal pay and his grievance regarding the public holidays in December (25/12/2024 and 26/12/2024) had been resolved.  He had a 06/08/2024 meeting and was on notice of this and was not on notice of a meeting on 05/08/2024.

PRELIMINARY ISSUE:

The respondent submits that the correct name of the Respondent is Apple Distribution International Ltd and consents to the name of the Respondent to be amended to reflect the correct legal name.

SUBSTANTIVE ISSUE:

It was submitted that the complainant commenced employment on 07 May 2019 as an Apple Care Advisor. He is currently employed as a People Support Specialist. The respondent initiated an investigation into unrelated matters and the Complainant requested that he be suspended from work on full pay pending the outcome of the investigation. The Respondent acceded to the Complainant’s request in this regard. The Complainant was on paid suspension from 22/06/2024 – 06/11/2024 when suspension ended.

The Complainant was on certified sick leave from 06/11/2024 till 31/12/2024 and sought to later have that certified sick leave period changed to suspension on full pay. The Respondent declined to change the employment status during that period as the Complainant had been certified as unfit for work due to sickness by a medical practitioner. The Complainant returned to work on the 02/01/2025.

On 09/01/2025 the Complainant sought credit for Public Holidays he claimed he was unable to take. These claimed dates were • 5th August 2024 • 28th October 2024 • 25 December 2024 • 26 December 2024 • The total leave credit claimed was 32 hours, being 8 hours in respect of each day claimed. The Respondent credited the Complainant with Public Holiday credits for 25/12/2024 and 26/12/2024 16 hours as the Complainant was on certified medical sick leave on those dates. The Respondent declined to credit the Complainant with 16 hours public holiday entitlement for the 05/08/2024 and 28/10/2024 respectively. The Respondent position is that the Complainant was paid in respect of those public holidays and as such had received a “paid day off on a public holiday” as required by S21 of the Organisation of Working Time Act 1997. The Respondent through Maeve Cahill, Head of Employee Relations Ireland with the Respondent, considered the request for additional public holiday hours sought by the Complainant. The decision was that the Complainant had been off work and paid for the 05/09/2024 and 28/10/2024 and accordingly no entitlement arose was communicated by Maeve Cahill to the Complainant on 23/01/2025.

A grievance was raised by the Complainant on 18/02/205 and considered by the Rebekka Sprei-Goel, Employee Relations Business Partner Germany. Rebekka Sprei-Goel was requested to investigate the Complainant’s grievance as an experienced employee relations partner not based in Ireland in the interests of ensuring objectivity considering Maeve Cahill’s position as Head of Employee Relations Ireland. The complaint was not upheld and a Grievance Outcome Report issued 07/04/2025. 

The Respondent denies it is in breach of the 1997 Act and/or that the Complainant is entitled to additional pay or time off as claimed. It is further submitted that the complaint in respect of 05/08/2024 is out of time. The Complaint was lodged with the WRC on the 5th March 2025 and no application made for an extension of time and no demonstration of reasonable cause that might give an Adjudication Officer the right to extend time for considering the complaint.

Strictly without prejudice to the above submission, it is submitted the Respondent has complied with its obligations under and the Complainant was not required to work or given notice to attend any work-related investigation on either the 05/08/2024 or 28/10/2024 /and was off work on both dates. He was paid his full remuneration for both dates. The Complainant would not ordinarily work on a public holiday. The Complainant had not been requested to nor had he volunteered to work on either the 05/08/2024 or 28/10/2024.

Strictly without prejudice to the above submissions the Respondent asserts the obligations on an employer under the Act only arise in certain circumstances. Section 21(4) of the Organisation of Working Time Act 1997 provides that the obligations in respect of a particular public holiday under Section 21 only arise if the employee has worked at least 40 hours during the period of 5 weeks ending on the day before that public holiday. The Complainant had, at his request, been suspended from work from the 22ndJune 2024. He had not worked at least 40 hours for the Respondent in the 5 weeks before 05/08/2024 or 28/10/2024 and it is submitted that in those circumstances the Complaint does not have a valid claim against the Respondent.

Again strictly without prejudice to the above the Respondent submits that the Act shall not apply, as respects a particular public holiday, to an employee who is, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule of 1997 Act.  It is submitted that the Complainant was absent for in excess of 13 weeks before the 28/10/2024 and accordingly the Respondent relies on Section 21(5) of the of the Organisation of Working Time Act 1997 that the Compliant does not have a valid claim against the Respondent in respect of the 28/10/2024.  The Respondent requests that the Adjudication Officer determine the complaint filed by the Complaint is not well founded and dismiss his complaint.

Evidence of Ms Cahill

Ms Cahill said she was involved in matters regarding an employee who raised concerns and allegations against with the complainant which warranted an investigation and he emailed asking could he be on placed suspension and albeit it was an unusual situation the respondent consented.  The complainant was given an opportunity to respond to the allegations and in November 2024 suspension was lifted.  There was a disciplinary process and a sanction given to the complainant regarding the other matters.  There were no queries about public holidays and he received the December public holidays.  He works in a team that works office hours and she did not believe that it was the norm that he would work public holidays and he never mentioned that he had volunteered for the August and October public holidays.

Cross Examination

She said that she may have notified the complainant on the same day about a meeting, giving him the ‘heads up’.

Evidence of Ms Sprei Geel

She is based in Germany and has a good understanding of the Irish law and heard his grievance.  The complainant told her he had to be on stand-by for calls and he did not share that there was a planner and this is normally shared 2/3 weeks before hand and she checked it out and the complainant confirmed that he would not expect to have ‘out of the blue conversations’ on the public holiday.  There had not been many meetings regarding the other investigation that resulted in his suspension and he did not mention any investigate meeting occurring in August 2024.  She issued a grievance outcome report on 07/04/2024 and it was her understanding that the complainant had not volunteered for the public holidays.  There was no cross examination.

Evidence of Claire Kelleher

The team had a policy of seeking volunteers to work public holidays and decided in 2023 not to ask people to work public holidays.  There had been a tracker in place in October 2023 and it had been removed back then.  Employees could volunteer in advance but not obligated and it was very defined and very exceptional.  She did not recall asking the complainant to work public holidays and there had been a reduced down commitment, and they turned off the workers’ phones so there would not be service calls during public holidays and this decision was made in October 2023.  She said the complainant may have worked May public holiday 2024.  The tracker was obsolete and employees were informed it was not necessary to volunteer for public holidays.  There was no cross examination.

The complainant submits that he did not receive appropriate benefit for the public holidays in August (05/08/2024) and October 2024 (28/10/2024) and that he was available to work and rostered to work.  The respondent submits that the complainant was suspended with pay at the time and was not scheduled to work and was paid the benefit of the public holidays.  The respondent further submits that the claim for the August public holiday is out of time as the complaint was received by the WRC on 05/03/2025.

Preliminary Issue:

The respondent submitted that the correct name of the respondent is Apple Distribution International Ltd and the complainant agreed to amend same and as parties are not prejudiced by this I agree to amend same.

Substantive Issue:

The complaint was received by the WRC on 05/03/2025.

Under the Act it is provided that

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

I am satisfied that there was no reasonable cause presented to entertain a complaint after 6 months and therefore e the cognisable period is 06/09/2024 – 05/03/2025. 

The 1997 Act provides that for 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.

(2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday.

(3) If an employer fails to comply with a request under subsection (2), he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day’s pay.

(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.

(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.

(6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work.

It is also set out that for 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.

(2) For the purposes of section 21, time off granted to an employee under that section or section 19 shall be regarded as time worked by the employee.

S.I. No. 475/1997 - Organisation of Working Time (Determination of Pay For Holidays) Regulations, 1997 also sets out that

3 Normal weekly rate of pay

3. (1) The normal weekly rate of an employee's pay, for the purposes of sections 20 and 23 of 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.

4 Appropriate 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.

5 Relevant rate for employees (other than certain categories of job sharer)

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,

or

(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.

(2) If the employee concerned (not being an employee to whom paragraphs (a), (b) and (c) of Regulation 6 of these Regulations apply) does not work on a day which is a public holiday, then—

( 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,

or

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:

Provided that the relevant rate to which the employee concerned shall be entitled under this paragraph in respect of a public holiday shall not exceed the relevant rate to which he or she would be entitled in respect of that holiday if subparagraph (a) or (b), as the case may be, of paragraph (1) of this Regulation were to apply to him or her.

It was not in dispute that the respondent initiated an investigation against the complainant involving matters unrelated to the instant complaint.  The complainant requested that he be suspended from work on full pay pending the outcome of the investigation and the respondent agreed to what was an unusual request and their policy provides that

“in exceptional circumstances, it may be appropriate to suspend an employee while allegations are being investigated…the employee should remain available during their normal hours of work while on suspension for interview”.

It was not in dispute that the complainant was on paid suspension from 22/06/2024 – 06/11/2024.  The complainant submitted that he had made himself available on the public holiday roster prior to the suspension and had worked the May 2024 public holiday.  I note the evidence of Ms Kelleher that there was no longer an expectation for the team to work public holidays and this had been decided in October 2023 but it would appear that the complainant did work the public holiday in May 2024 and therefore it is credible that the complainant outlined his availability for work during the August and October 2024 public holidays.  In DWT1933 O' Leary International Unlimited Company v Marius Roca the Court found in favour of the complainant whereby the complainant had been suspended during a public holiday but the circumstances differ as the complainant had not been paid in any capacity by the respondent whereas in this instant case the complainant had been paid.

As mentioned above, the August public holiday is not within the cognisable period and I note that that the respondent’s policy provides that employees need to be available during normal hours of work while on suspension for interview.  I do not find that the public holiday can be considered normal hours of work taking into consideration that this is something that the complainant volunteers for and therefore, it is atypical to his normal hours of work.  I further note that the complainant could have had no expectation to be available for meetings during the public holiday  and knew he was suspended and would not have an expectation to be available for ‘normal work’.  I further note the complainant’s evidence that he would normally be communicated to if he was required to work any public holiday that he might have volunteered for and this is not arise for either August or October public holiday.

I find, therefore, in all the circumstances that the complainant could not have considered himself rostered for during the cognisable period, and got paid  as provided for under the Act of (a) a paid day off on that day, and therefore I find that the complaint is not well founded and dismiss his complaint.

I find that the complaint is not well founded and dismiss his complaint.

Suspension with pay, public holiday, rostered