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PART TIME WORKERS – HOLIDAYS AND PUBLIC HOLIDAYS

A common problem which we receive from clients is how to work out the annual leave entitlements (holiday entitlements) and Public holiday entitlements for employees who are part time workers.

The holiday entitlement for part time workers depends on the number of hours that they work.  There are two methods used to calculate their entitlements.  These are

(a)   Where the employee works at least 170 hours in certain months throughout a year then they are entitled to one third of a working week per calendar month, or

(b)   Employees who work on a part time basis and work less than 170 hours per month will receive 8% of the hours they work in a leave year.

Example

Mary works from 9.00 a.m. to 1.00 p.m. five days a week.  This is 4 hours a day for 5 days being 20 hours per week.

20 hours per week multiplied 52 weeks = 1,040 hours in the year

1,040 hours x 8%  = 83.2 holiday entitlements

The entitlement to annual leave is 20 days being 4 weeks per annum.  In this case the entitlement would be a full 20 days.

If Mary only worked 3 hours a day her entitlement would be for 3 weeks paid leave.

Public Holidays

All full time staff have an entitlement to Public holiday benefits.  Where an employee is a part time worker then the employee must work for at least 40 hours in the 5 weeks ending on the working day before the Public holiday.  Where this happens the employee is entitled to one fifth of the benefit based on their normal working week. In the example of Mary above, as she works Monday to Friday from 9.00 a.m. to 1.00 p.m. being 4 hours per day or 20 hours per week she will be entitled to 4 hours pay on the Public holiday.

How to calculate Public Holiday Entitlements

To qualify for a Public holiday entitlement the employee who is not a full time worker, that is a part time employee, must have worked for the employer for at least 40 hours in the 5 weeks ending on the working day before the Public holiday.

For each Public holiday the employee is entitled to either

(a)   A paid day off on the holiday, or

(b)   A pad day off within the month following the Public holiday, or

(c)    An extra day’s annual leave,  or

(d)   An extra day’s pay

An employer is entitled to set out whether an employee will work on a Public holiday in which case the employer determines which of the benefits  at (b), (c) or (d) apply.  If the employer decides that the employee will have a day off and will not work that day then the employee receives their normal day’s pay for that day.

It should be remembered that where an employment ceases in the week before the Public holiday is due to fall and the employee has worked for the employer during the four weeks before that week, then the employee is entitled to receive payment for that Public holiday equivalent to his/her normal daily rate of pay.

Calculating part time workers entitlements can be complex and appropriate advice should always be obtained.

Unfair Dismissal

The Unfair Dismissal Acts enables employees who believe they have been unfairly dismissed to present a claim of unfair dismissal to either a Rights Commissioner or to the Employment Appeals Tribunal.

The Acts apply to employees over 16 with at least 12 months’ continuous service with the exception of

• Close relatives of the employer who live and work in the same private house / farm.
• Members of the Defence Forces or Gardaí
• FAS Apprentices who have been dismissed within one month within the end of their apprenticeship.
• The requirement of twelve months’ service does not apply to an employee whose dismiss results from one or more of the following.
• The employee’s Trade Union membership.
• Any matters connected with pregnancy, giving birth or breast feeding
• Exercising or proposing to exercise a right to protective leave or natal care absences.
• Exercising or proposing to exercise rights to parental leave, force majeure leave or carer’s leave
• Exercising or proposing to exercise rights to adoptive leave or additional adoptive leave.

Section 14 of the Unfair Dismissals Act 1977 requires that within 28 days of the commencement of employment, an employee must be advised of the procedures which will be used for dismissal.

An employee who is dismissed may furnish a notice under Section 14, of the Unfair Dismissals Act 1977, requesting from the employer particulars as to the grounds on which the employee has been dismissed. The employer must respond within 14 days of the request. If the employer does not respond within 14 days of the request a Tribunal may only take into account grounds which are substantial grounds justifying the dismissal.

The Rights Commissioners Service and the Employment Appeals Tribunal have been very influenced by the dismissal methods used by employers and the manner in which they are applied. Where fair procedures are not applied which at a minimum comply with a Code of Practice on Grievance and Disciplinary procedures the dismissal is likely to be deemed unfair.

Employees

An employee must file a claim no later than 6 months from the date of dismissal. If an employee does not do so they face the prospect of the claim being barred. The legislation provides that a claim may be brought within 12 months in exceptional circumstances. The case law is very clear. Exceptional circumstances is a very high legal test. It would include, for example, that a person was incapacitated or that they were placed under some form of duress. All employees are obliged to minimise their loss. This means in practice an employee must seek to find a new job. A Tribunal will seek evidence of this. This includes such matters as a CV, evidence as to where the employee applied for a job, copies of all receipts for job applications and replies. We advise all employees in such cases to keep a detailed record as to whom they applied to. As many applications will now be by email a delivery receipt of a CV can be easily requested and printed off.

Where an employee is given a right of appeal the employee should always exercise the right of appeal.

Employers

In Unfair Dismissal claims the burden of proof is on the employer to justify the dismissal. The need for accurate minutes and records of the events surrounding and leading up to the dismissal is vital. In our experience the lack of supporting documentation can mean that the employer when faced with having to account for the dismissal and to justify it finds it extremely difficult to do so. If an employer cannot show that fair procedures were applied such as including a right of representation, that the allegation was given to the employee in advance, that the employee had a right to representation, that the employee has sufficient time to mount a full defence and that the employee was given a right of appeal it is likely that the dismissal is going to be declared unfair. No employer should dismiss an employee without getting appropriate legal advice.

The Level of Awards

An employee can receive up to two years loss of income. While this is unusual if an employee is being paid €500 net per week and is dismissed there is the potential of the employee receiving an award of up to €52,000. Even if the employee gets a new job if that new job is at a lower rate of pay for example at €400 per week their net loss is €100 per week. This can mean an award of up to €10,400. In our experience the levels of awards are rising. In the last month alone we have been involved in two cases, before the Rights Commissioners Service where employees on the National Minimum Wage received awards of €16,000 and a little over €8000. Both of these employees had obtained new employment within a year.

Employment Law Firm

of the Year Category

2013