FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : CEMENTATION SKANSKA IRELAND LIMITED - AND - FRANK HOLOHAN DIVISION : Chairman: Mr Flood Employer Member: Mr Pierce Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Decision WT 3018/00/MR.
BACKGROUND:
2. The worker's claim is that he never received holiday/public holiday pay whilst employed by the Company. The Company's view is that it paid its workers a premium payment in lieu of holiday pay. The worker left his employment on the 6th of May, 2000, and referred a claim to the Rights Commissioner service on the 21st of November, 2000. He claims that the reason that he did not make a claim within the 6 months specified in Section 27(4) of the Organisation of Working Time Act, 1997, (the Act) is that he was awaiting the results of a test case taken by a fellow employee. He was told by his Union that if the test case was successful then all workers would be paid holiday pay. When he realised that this was not the case, he made his own claim in November, 2000. The Rights Commissioner's decision issued in October, 2001, as follows:
"In accordance with Section 27 of the Act, I hereby declare that this complaint is out of time".
The worker appealed the decision on the 22nd of November, 2001, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Company's case is that (1) the contracts of employment were very clear that workers were paid holiday pay by way of the premium payments and (2) that the worker's claim is out of time. The following is the Court's determination:
DETERMINATION:
The Court, having considered the written and oral submissions, supports the Rights Commissioner's findings.
The Court, therefore, rejects this appeal and upholds the Rights Commissioner's decision.
The Court so determines.
Signed on behalf of the Labour Court
Finbarr Flood
7th January, 2002______________________
CONChairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.