FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : THE DEPARTMENT OF DEFENCE - AND - JIM LYNCH DIVISION : Chairman: Ms Jenkinson Employer Member: Mr McHenry Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Decisions WT2439/00/MR and WT2440/00/MR.
BACKGROUND:
2. In September, 2000 the claimant submitted two claims to a Rights Commissioner for investigation under the Organisation of Working Time Act, 1997 concerning annual leave. The days in dispute were the 1st of October, 1999 and the 16th and 17th of November, 1999. The Rights Commissioner issued his findings and Decision on the 13th of December, 2000 as follows:
"Findings
Based on the evidence before me, I am satisfied that both complaints are out of time under Section 27(4) of the Act. Bearing in mind that I had heard an earlier complaint under this Act involving the same parties on 8 May 2000, WT678/00/MR, I see no reason why the extended period set out in Section 27(5) of the Act should apply in either case.
Decision
In accordance with Section 27 of the Act, I hereby declare that these complaints are out of time."
The worker appealed the Decisions to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The appeal was received in the Court on the 2nd of January, 2001 and was heard by the Court in Cork on the 11th of April, 2001, the earliest suitable date.
WORKER'S ARGUMENTS:
3. 1. The claimant is seeking the re-allocation of annual leave which he was forced to take for medical reasons.
2. The worker's claims were outside of the six month time limit as he was suffering from stress and was not thinking clearly. He has been absent from work since February, 2000. He was not aware of the correct procedures to follow to pursue his claim and wrote to the Minister for Defence and the Taoiseach about them.
3. The claimant requested annual leave for the 1st of October, 1999 but was refused. Although he attended his doctor that day his absence was treated as absence without pay.
4. The claimant was summoned to attend a medical referee on the 16th and 17th of November, 1999. He was told that he must sign for annual leave for the two days absence. Neither he, nor any other worker, should be compelled to take annual leave for medical purposes.
DEPARTMENT'S ARGUMENTS:
4. 1. The Department has argued that the complaints are inadmissible as they were lodged outside of the prescribed time limit. The Rights Commissioner found accordingly.
2. The worker did not submit a medical certificate to local Naval Service management for the 1st of October, 1999. However, on the 15th of October he wrote to the Minister for Defence enclosing a copy of a medical certificate stating that he had attended the doctor's surgery on the 29th and 30th of September and on the 1st and 2nd of October.
3. The employee telephoned the pay clerk on the 30th of September and asked to be put down for one day's annual leave to attend his doctor. He was advised to get a medical certificate to cover his absence. He gave a number of reasons to different parties for his absence on the 1st of October, but there is no record of a written application for a day's annual leave.
4. The employee applied for annual leave for the 16th and 17th of November. It was approved on the 12th of November. The worker was not compelled to avail of annual leave as he has claimed. If he had submitted medical certificates for those days they would have been recorded as sick days. However, as he had exhausted his entitlement to sick pay, he would not have been paid.
DETERMINATION:
Having considered all aspects of this appeal, the Court is of the view that the appellant has not shown reasonable cause why his two complaints under the Organisation of Working Time Act, 1997 were not processed within six months of the date of the contravention to which the complaints relate.
The Court has established that the appellant was fully aware of the Act and its procedures at the time and that he had in fact brought one of the complaints to the highest authority in the country. Therefore, the Court is not satisfied that there was reasonable cause shown for the delay in processing the complaints. The appeal is, therefore, denied.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
2nd May, 2001______________________
D.G.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Dympna Greene, Court Secretary.