FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MICHAEL HEALY PLANT HIRE - AND - A WORKER (REPRESENTED BY CARNEW ENTERPRISE CENTRE) DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Mr. Somers |
1. Appeal against Rights Commissioner's Decision WT1725/00/GF.
BACKGROUND:
2. The worker commenced employment with the Company in March, 1998. The salary agreed was for £200 net per week, based on a forty hour week. The worker claims that he tendered his resignation in April, 2000 and left one week later.
He states that he received £160 along with his P45. During his employment with the Company, the worker claims that the only paid leave he took was five days in October, 1999. He claims that he did not receive his full holiday pay entitlements.
The dispute was the subject of a Rights Commissioner's hearing which took place on the 28th of August, 2000. The following is the Rights Commissioner's recommendation:-
"I am satisfied that the complaint is well founded, and I am awarding the claimant the sum of £440 which I calculate for the leave year 1999 - 2000".
The Company did not attend the Rights Commissioner's hearing.
The worker appealed the Rights Commissioner's recommendation to the Labour Court on the 19th of September, 2000 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 16th of January, 2001. (The Company did not attend the Labour Court hearing).
DETERMINATION:
In this case the worker is claiming arrears of holiday pay for the leave years April 1998 to March 1999 and April 1999 to March 2000. He told the Court that he had received no annual leave in the leave year 1998 to 1999. In the leave year 1999 to 2000, he received £140.00 in respect of holiday pay, which represented four day's pay.
A complaint was presented to a Rights Commissioner by the worker on the 14th July, 2000 pursuant to Section 27 of the Organisation of Working Time Act, 1997. Having found that the complaint was well founded the Rights Commissioner awarded the worker the sum of £440.00 in respect of arrears of holiday pay due to him in respect of the leave year 1999 to 2000. No award was made in respect of the leave year 1998 to 1999. The worker appealed to the Court against the Decision of the Rights Commissioner in so far as it failed to adjudicate on his claim in respect of that leave year.
Section 27(4) of the Organisation of Working Time Act, 1997 provides that a Rights Commissioner (and the Court on appeal) may not entertain a complaint submitted after six months from the date of the alleged contravention of the Act to which it relates. Section 27(5) of the Act allows for the extension of this limitation period by a further twelve months where reasonable cause is shown.
The worker told the Court that he was unaware that he had a legal right to holiday pay and he believed that had he sought holidays the employer would have dismissed him. He said that he had been given to understand by the employer that he would be rewarded in some other way for not receiving holidays. For these reasons he had not brought a claim under the Act during the continuance of his employment.
On this uncontradicted evidence of the worker the Court accepts that reasonable cause has been shown and is , accordingly, prepared to extend the limitation period to one of eighteen months, in accordance with Section 27(5) of the Act.
The annual leave to which the worker was entitled in respect of the leave year 1998 to 1999, should have been provided to him not later than 31st August, 1999 at which time the contravention of the Act occurred. This is within a period of eighteen months from the date on which the complaint was made to the Rights Commissioner (14th July,2000) and the complaint, in so far as it relates to that year, can be entertained by the Court.
The employer did not appear at the hearing and did not defend this appeal. Accordingly, the appeal is allowed. The worker's entitlement in respect of annual leave is 18 days for the leave year 1998 and 20 days for the leave year 1999, making a total of 38 days. The worker received payment for a total 9 days over this period leaving a balance of 29 days. His daily rate is £40.00. The total award is therefore £1,160. This is inclusive of the award of £440.00 made by the Rights Commissioner.
The decision of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
25th January, 2001______________________
LW/CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.