FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : SWIFTCALL CENTRE LTD (REPRESENTED BY WILLIAM FRY & CO SOLICITORS) - AND - A WORKER DIVISION : Chairman: Mr Duffy Employer Member: Mr Pierce Worker Member: Ms Ni Mhurchu |
1. Appeal Against Rights Commissioner's Decision WT510/99/GF.
BACKGROUND:
2. The worker was first employed as a consultant with the Company from June, 1997. In January, 1998, he was formally employed as general manager with a salary of £600 per week. He claims that his employment was terminated by the Company without proper notice and that he is entitled to holiday pay.
The Company states that the worker's employment terminated on the 17th of April, 1999, as the worker ceased to attend for work and as a result his P45 was issued to him in mid-June, 1998. It also stated that the claimant was paid up to the end of May, 1998.
The Company also submits that the applicant's claim is out of time as it does not come within the time limits as set out in Section 27(4) and (5) of the Organisation of Working Time Act, 1997.
The worker submitted his claim to a Rights Commissioner under the Organisation of Working Time Act, 1997. However, due to a misunderstanding, the claimant did not attend the hearing. The Rights Commissioner issued his Decision on the 10th of February, 2000, as follows:-
"in the absence of the claimant I have decided to agree to the respondent's request to have the complaint struck out."
The worker appealed the Rights Commissioner's Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 19th of February, 2000. The Court heard the appeal on the 8th of June, 2000.
COURT'S CONCLUSIONS:
3. In this case the claimant is claiming holiday pay in respect of the period between the 1st and 11th of June, 1998.
Time Limit
There is a dispute between the parties as to when the claimant's contract of employment terminated. This in turn affects the question of whether the complaint was made within the statutory time limit for the bringing of such complaints.
The employer contends that the date of termination was the 17th of April, 1998, when the claimant ceased to attend at the employer's premises. The claimant maintained that the relevant date is the 11th of June, 1998, when his P45 was issued to him. He further maintained that he had continued working for the employer up to that date but did so away from the premises at the instructions of the person whom he habitually regarded as his immediate manager.
Having considered the submissions of the parties, the Court is satisfied, on balance, that the claimant's contract of employment came to an end on the 11th of June, 1998.
The claim under the Organisation of Working Time Act, 1997, was referred to a Rights Commissioner on or about the 8th of December, 1999. Section 27(4) of the Act provides as follows:
"(4) A Rights Commissioner shall not entertain a complaint under this section if it is presented to the Commissioner after the expiration of a period of 6 months beginning on the date of the contravention to which the complaint relates."
The complaint herein was made some 18 months after the date of the contravention to which it relates. However, Subsection (5) of Section 27 of the Act goes on to provide as follows:
"(5) Notwithstanding subsection (4), a Rights Commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was for reasonable cause".
The Court interprets subsection (5) as allowing a Rights Commissioner to entertain a complaint brought outside the period of 6 months referred to in subsection (4) but within a period of 18 months from the date of the alleged contravention, provided reasonable cause is shown.
The Court heard evidence from the claimant to the effect that he delayed bringing the complaint in the hope that his grievance could be resolved directly with the Company. The Court accepts that this was the reason for the delay and that in the circumstances it constitutes reasonable cause. The Court, therefore, agreed to consider the complaint pursuant to Section 27(5) of the Act.
DETERMINATION:
It is accepted that the claimant was paid holiday pay due to him up to the end of May, 1998. Having held that the claimant continued working for the employer up to the 11th of June, 1998, he is due holiday pay in respect of the period between the 1st of June and that date. The Court was told that the claimant worked for a total of 80 hours at a rate of £15 per hour.
In accordance with Section 19 (1) of the Act, the Court measures the claimant's entitlement at 6.4 hours at £15 per hour or at £96 gross.
The Court determines that the claimant's complaint is well founded and the employer is directed to pay him holiday pay in the amount of £96. The decision of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
13th June, 2000______________________
LW/CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.