FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MANUFACTURING & MAINTENANCE ENGINEERING LIMITED - AND - MARTIN CURRAMS (REPRESENTED BY PINE DAWN LIMITED) DIVISION : Chairman: Mr Duffy Employer Member: Mr Pierce Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Decision No. WT4750/01/GF.
BACKGROUND:
2. The claimant was employed by Manufacturing and Maintenance Engineering Limited (the Respondent) between April, 1997, and December, 2000. He complained that during this period, the respondent failed to grant him the full amount of annual leave to which he was entitled under Section 19(1) of the Organisation of Working Time Act, 1997 (the Act).
The respondent contends that the claimant had been granted paid annual leave over this period which exceeded his statutory entitlement. They deny that there is any money due and owing to the claimant.
The complaint was referred to a Rights Commissioner on the 15th of May, 2001, and a hearing held on the 30th of October, 2001. The claimant failed to attend before the Rights Commissioner (an explanation for which was provided to the Court). In these circumstances, the Rights Commissioner found that the complaint was not well founded. It is against that decision that the claimant appealed to the Court.
The Complaint
The substance of the complaint is that the respondent did not grant the claimant the amount of annual leave to which he was entitled in each of the leave years 1997 - 1998, 1998 - 1999, 1999 - 2000 and 2000 - 2001. If the claimant is correct, the failure to provide the requisite leave in each of the leave years constitutes a separate infringement of the Act which must be considered separately, including for the purpose of applying the time limits prescribed by Section 27 of the Act.
Scope of the Court's Jurisdiction.
Section 27(4) of the Act provides, in effect, that a complaint may not be entertained by a Rights Commissioner (or the Court on appeal) unless it is presented within a period of six months beginning on the date of the contravention of the Act to which the complaint relates. Section 27(5) provides that where reasonable cause is shown, this period may be extended by up to a further 12 months.
In relation to the present case, the practical effect of this provision is that the Court cannot entertain any portion of the claims which relates to annual leave which became finally due prior to December, 2000, or if subsection (5) of Section 27 is applied, December, 1999. In that regard, annual leave, in respect of any leave year, becomes finally due on the 30th of September next following the close of the leave year to which it relates (Section 20(1)(c) of the Act). It is from that date that the time limit starts to run.
Extension of Time
The claimant told the Court that he delayed in making a claim for holidays because he believed that leave could be carried forward from year-to-year and that it was only when his employment terminated that he realised that this was not the case. In the circumstances, the Court accepts that this constitutes reasonable cause. Accordingly, the Court is prepared, pursuant to Section 27(5) of the Act, to extend the period for the bringing of the complaint by a further 12 months.
Extent to which the Claim can be entertained
The complaint herein was submitted on the 15th of May, 2001. The only infringements alleged which can be taken into account are those occurring on or after the 16th of December, 1999. Thus, those parts of the claims which relate to arrears of annual leave in respect of the leave years 1997 - 1998, and 1998 - 1999, are out of time and are statute barred.
Leave Years 1999 - 2000 and 2000 - 2001
The claimant claims that in the leave year 1999 - 2000, he was granted 19.5 days' leave. On that basis, he is due a further 0.5 days leave. In the leave year 2000 - 2001, the claimant worked for 9 months and accrued an entitlement to 15 days' annual leave. He claims to have been granted 13.5 days. Hence the total claimed shortfall, within the reckonable period, is two days.
The respondent told the Court that without prejudice to their contention that the claimant received his full statutory entitlements, they would not dispute the claim for an additional two days' leave.
DETERMINATION:
- The Court awards compensation in the amount of €269.18, being the value of 2 days' pay at €16.82 per hour.
Signed on behalf of the Labour Court
Kevin Duffy
15th March, 2002______________________
CON/CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.