DWT0344

FULL RECOMMENDATION

WTC/03/11

DETERMINATIONNO.DWT0344

(WT5923/01/MR)

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

PARTIES :

CEMENTATION SKANSKA (FORMERLY KVAERNER CEMENTATION) LIMITED

- AND -

THOMAS HAYES

DIVISION :

Chairman: Mr Duffy
Employer Member: Mr Grier
Worker Member: Mr O'Neill

SUBJECT:
1. Appeal of Rights Commissioner's decision WT5923/01/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 the claimant was paid holiday pay and public holiday pay under revised contracts of employment which applied from 1st January, 2001.

The worker referred a claim to the Rights Commissioner service on the 6th 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 waiting the results of a test case taken by a fellow employee.

The Rights Commissioner's Decision issued on the 31st December, 2002 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 24th January, 2003, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Company's case is that the worker's claim is out of time. A Labour Court hearing took place on the 22nd April, 2003. The following is the Court's Determination:

DETERMINATION:

The claimant was employment by the respondent between 1st November 1998 and 2nd July 1999, when his employment terminated.

On 6th September 2001 he presented a complaint to a Rights Commissioner pursuant to section 27 of the Organisation Of Working Time Act 1977 (the Act) claiming redress in respect of alleged infringements of his statutory rights in relation to annual leave and public holidays over the full duration of is employment. The complaint was heard by the Rights Commissioner on 1st August 2002. The Rights Commissioner held that the complaint at been presented outside the time limit prescribed by section 27 of the Act and in consequence it could not be entertained.

Section 27 of the Act provides in relevant part as follows:

(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 time limit prescribed by section 27 (4) runs for the date of contravention of the Act to which the complaint relates. The latest date on which a contravention of the Act could have occurred is 2nd July 1999 which is the date on which the claimants employment terminated. The complaint herein was presented 27 months later. It was clearly presented outside the statutory time limit and could not be saved by the application of the extended limitation period provided for at section 27(5).

Accordingly, neither the Rights Commissioner or the Court has jurisdiction to entertain this claim. The decision of Rights Commissioner is affirmed and the appeal is disallowed.

Signed on behalf of the Labour Court

Kevin Duffy
28th October, 2003______________________
JB/Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.