FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : SEAN RUSH DENTAL LABORATORY - AND - ANTHONY VEREKER (REPRESENTED BY MURPHY & CO SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Pierce Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Decision WT 2094/00/MR
BACKGROUND:
2. The worker commenced employment with the Company as a dental technician in the middle of July, 1998. At the hearing, there was disagreement between the parties as to when the worker's employment terminated. The Company claims that it was on the 18th of February, 2000, and that the worker had telephoned on the previous day to say that he was going to Dublin seeking other employment. The worker claims that he was legally employed until the 25th of February. He wrote to the Rights Commissioner's service, claiming that he had not received his full holiday entitlements over the course of his employment. His complaint was lodged on the 21st of August, 2000. Following a hearing, the Rights Commissioner's decision issued as follows:
"In accordance with Section 27(2) of the Organisation of Working Time Act, 1997,
I now decide that this claim is now out of time."
The worker appealed the decision to the Labour Court on the 13th of November, 2000, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 23rd of January, 2001 in Tralee. At the hearing, it was agreed between the parties that if the appeal was found to be within time, they would have the choice of referring the case back to the Rights Commissioner or have the Court deal with the substantive issue of the holiday entitlements. (The Court did find that the appeal had been lodged in time , and the parties agreed to have the Court deal with the case.)
It was agreed by the parties that the time in dispute was the year 1998/1999. The worker is claiming that he was not paid his full entitlements for that period (from the 16th of July, 1998 to 31st of March, 1999), including the week following Christmas, when the business was closed. This week included 2 Bank Holidays - the 28th of December and the 1st of January. The Company maintains that the worker was paid all moneys due to him, and supplied a list of the relevant dates to the Court. The following is the Court's Determination:
DETERMINATION:
The Court heard the case submitted by both sides relating to the appeal of the Rights Commissioner's decision, which deemed the worker's claim to be out of time under Section 27(4) of the Organisation of Working Time Act, 1997. Having heard all the submissions on this point, the Court deemed that the claim was within the time limit set down under Section 27(4)
Following this decision, the parties opted to have the claim for annual leave and public holidays dealt with by the Labour Court, and not to refer it back to the Rights Commissioner. (It was accepted by both sides that by taking this course of action there was no appeal mechanism open to the parties).
Having considered all the details, the Court concludes that the worker is entitled to 5 days' annual leave and 2 public holidays for the period of his claim, i.e. 16th of July, 1998 - 1st April, 1999. Therefore, the Court recommends that he should be paid a sum of £286.86 gross in respect of his claim for outstanding annual leave and public holidays under the Organisation of Working Time Act, 1997. The Court also recommends that he should be paid £100 compensation under Section 27(3) of the Act.
Signed on behalf of the Labour Court
Caroline Jenkinson
12th February, 2001______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.