FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : NORTHERN AREA HEALTH BOARD - AND - THOMAS WHELEHAN DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Decision WT15650/03/TB.
BACKGROUND:
2. The worker concerned was employed by the Health Board for 22 years. He retired, on health grounds in March, 2003.
The issue before the Court is a claim for holiday pay and whether this claim is within the prescribed time limit.
The Board state that in October, 2003, all issues in relation to the worker were settled following mediation.
The claim was referred to a Rights Commissioner for investigation. His decision issued on the 2nd of February, 2004, and he found the claim to fall outside the time limit prescribed in the legislation. The worker appealed the Rights Commissioner's decision to the Labour Court on the 10th of February, 2004, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Court heard the appeal on the 21st of April, 2004.
WORKER'S ARGUMENTS:
3. 1. The worker concerned was in employment on two days in 2002 when the employer stated that he was on leave.
2. The worker sought details of his holiday leave record from the Board early in 2003 and only received the correct details in August 2003.
3. The worker signed the mediated agreement when he was under great stress due to his difficulties with management and his medical problems.
MANAGEMENT'S ARGUMENTS:
4. 1. The Management records show that the worker was on leave on the days in question in April, 2002 .
2. Management entered the mediation process in good faith and honoured the agreed outcome.
DETERMINATION:
This is an appeal by the worker against the decision of the Rights Commissioner's Recommendation number WT15650/03/TB 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.
On 16th June 2003, the appellant 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 during the period 1999 to 2002. The complaint was heard by the Rights Commissioner on 14th January, 2004.
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.
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 17th December, 2002, or if subsection (5) of Section 27 is applied, 17th December, 2001.
The complaint herein was submitted on the 16th June, 2003. The Court is satisfied that infringements alleged to have occurred on or after the 17th of December, 2002, are within the Court's jurisdiction. Those parts of the claim, which relate to arrears of annual leave in respect of the leave years 1998-1999, 1999-2000 and 2001-2002 are out of time and are statute barred. The Court may hear that part of the claim which relates to the leave year 2002-2003.
Leave Year 2002-2003
The respondent states that the claimant was on leave for two days, the 2nd and 5th of April, 2002 and that the calculation of holiday pay on the termination of his employment took account of the fact that he already had 2 days annual leave. The claimant states that he did not take leave on the days in question and, therefore, his termination pay should have included an extra two days holiday pay.
The claimant told the Court that he had raised the question of his holiday entitlements with management on a number of occasions during the years 2002 to 2003.
Following a meeting with the Chief Executive of the Health Board in July 2003, a number of outstanding issues were identified and an independent mediator was engaged to assist in their resolution - one of which was "the issue of payment for annual leave". The outcome of this process resulted in the appellant being offered a sum of money in full and final settlement of all matters raised including his outstanding annual leave entitlements. This sum, after the claimant thought it over, was accepted. Therefore, the respondent maintains that there is no case to answer. On that basis the respondent did not attend the Rights Commissioner's hearing.
The Court notes that the appellant sought details from the respondent of his annual leave records for the periods in question. The respondent states that while incorrect information was supplied to him initially on 20th March, 2003, further information was supplied in August 2003, and the respondent understands that the claimant accepts that this was the correct information.
However, despite the fact that the offer was made and accepted, the formal complaint made to the Rights Commissioner under Section 27 of the Act was not withdrawn, and consequently, the Rights Commissioner proceeded to hear the case.
The appellant submitted to the Court that when he signed his acceptance of the settlement on 9th October, 2003, his "capacity to contract was greatly diminished" as he was under extreme stress due to difficulties he had with management and due to a medical problem. He accused the respondent of attempting to defraud him of his annual leave entitlements. He stated that had he been in possession of information , which he eventually received in November 2003, he would not have entered into the agreement in October, 2003.
Having given careful consideration to the submissions of both sides, the Court concludes that the agreement entered into in October, 2003, was a valid agreement for the following reasons:-
- the appellant had in his possession detailed information concerning his annual leave records before he signed the agreement,
- the agreement specifically referred to the appellants' claim for payment for outstanding annual leave,
- the appellant had consulted a solicitor prior to the mediator's investigation and the offer,
- the appellant had six days to consider the offer before he decided to sign it, thereby giving him time to consider the offer and to seek advice,
- acceptance of the offer was signed and witnessed by the independent mediator.
The Court is satisfied that the information the claimant received in November, 2003, did not in any material way alter the situation in respect of his claim for payment for outstanding annual leave.
The Court is of the view that the October, 2003, Agreement included inter alia an agreement between the parties to settle the complaint made to the Rights Commissioner on 16th June, 2003, by payment of a sum in respect of all outstanding annual leave. The Court is satisfied that the claimant has been paid his full entitlement for annual leave for the leave year 2002/2003 and, therefore, his claim must fail.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
10th May 2004______________________
MG/MB.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.