DWT0350

FULL RECOMMENDATION

WTC/03/35

DETERMINATIONNO.DWT0350

(WT6026/01/MR)

SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997

PARTIES :

CEMENTATION SKANSKA (FORMERLY KVAERNER CEMENTATION LIMITED)

- AND -

DENIS DOHERTY

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Mr Grier
Worker Member: Mr. Somers

SUBJECT:
1. Appeal against Rights Commissioner's Decision WT6026/01/MR

BACKGROUND:

2. The worker claims that he did not receive any holiday/public holiday pay while employed by the Company. The Company states that it paid its workers a premium payment in lieu of holiday pay. The worker left his employment on the 4th March, 2000, and referred a claim to the Rights Commissioner service on the 5th September, 2001. The worker states that the reason he did not make a claim within the 6 months as specified in Section 27(4) of the Organisation of Working Time Act, 1997 (the Act) was that he was awaiting the results of a test case taken by a fellow employee.

The Rights Commissioner's Decision issued on the 10th April, 2003, as follows:

"In accordance with Section 27 of the Act, I hereby declare that this complaint is out of time"

The worker appealed the Rights Commissioner's Decision on the 16th May, 2003, 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 premium payments and (2) that the worker's claim is out of time. The Court heard the appeal on the 12th August, 2003.

The following is the Court's Determination:

DETERMINATION:

This is an appeal by the worker against the decision of the Rights Commissioner in WT6026/01/MR who found that the complaint under the Organisation of Working Time Act, 1997 (the Act) was out of time in accordance with Section 27 of the Act.

Section 27 states:

(4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(5) Notwithstanding subsection (4), a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.

The appellant’s employment with the respondent had terminated on 4th March 2000. On 5th September 2001 he presented a complaint to a Rights Commissioner pursuant to section 27 of the Act claiming redress in respect of alleged infringements of his statutory rights in relation to annual leave and public holidays. The complaint was heard by the Rights Commissioner on 12th March 2003.

Conclusion and Determination of the Court

The limitation period set down in Section 27 runs from the date of cesser of employment and as the complaint was not made until 5th September 2001 the Court finds that it is out of time both under Section 27 (4) and (5) of the Act and accordingly upholds the Rights Commissioner’s decision.

The appellant’s appeal fails.

The Court so determines.

Signed on behalf of the Labour Court

Caroline Jenkinson
7th November, 2003______________________
LW/BRDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.