FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : CEMENTATION SKANSKA (IRELAND) LIMITED - AND - JOHN SMITH (REPRESENTED BY SANDYS & BROPHY SOLICITORS) DIVISION : Chairman: Mr Flood Employer Member: Mr Pierce Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioners Decision WT3866/01/MR.
BACKGROUND:
2. The worker commenced working with Kvaerner Cementation (Ireland) Limited (now Cementation Skanska (Ireland) in 1996 as a sub-contractor. In November, 1998, his position was regularised. The worker suffered a serious accident in May, 1999, requiring hospitalisation. He returned to work on a very limited basis and his employment was terminated on the 14th of July, 2000. The worker's claim is that he was never paid holiday pay. He claims that he was not aware that a number of fellow workers were bringing claims against the Company in relation to the non-payment of holiday pay. He believed that a test case was being taken by a colleague before a Rights Commissioner, and any ruling by the Rights Commissioner or subsequently by the Labour Court would apply to all employees and that he did not have to put in an individual claim. Two individuals did take cases against the Company. In the first case, (which issued on the 14th of April, 2000), a Rights Commissioner found that the worker should be paid holiday pay strictly in accordance with the Organisation of Working Time Act, 1997 (the Act). The Company appealed the decision to the Labour Court and the Court, in DWT017 which issued on the 31st of January, 2001, found that the Rights Commissioner was correct.
The worker subsequently lodged a claim with the Rights Commissioner on the 12th of February, 2001. A hearing took place on the 20th of September, 2001. The Rights Commissioner's decision is as follows:
"In accordance with Section 27 of the Act, I hereby declare that this complaint is out of time."
The worker appealed his case to the Labour Court on the 22nd of November, 2001, in accordance with Section 28(1) of the Act, on the grounds that the Rights Commissioner should have extended the period as set out in Section 27(5) of the Act. A Labour Court hearing took place on the 4th of December, 2001, in Roscrea. The Company's case is (1) that it paid its workers a premium payment instead of normal holiday pay and (2) that the worker's appeal is out of time. At the Court hearing, it pointed out that while there were a number of similar cases pending, some 70% of its employees had not taken cases as they believed that they had received holiday pay by way of the premium payments. 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______________________
CON/CCChairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.