FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : PATRICK T DURCAN & CO SOLICITORS - AND - PHILIP MATTHEW COURTNEY DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal of Rights Commissioners Decision r-044906-wt-06/JT
BACKGROUND:
2. The Claimant worked with the Respondent as a Legal Secretary between 23rd May, 2005 until his employment was terminated on the 3rd February, 2006. The issue involves a claim that the full annual leave entitlements were not granted to the Worker, a claim that was vigorously denied and the matter was referred to a Rights Commissioner for investigation and recommendation. On the 6th November, 2007 the Rights Commissioner issued his Recommendation as follows
:"Due to the unexplained absence of the claimant, the claim falls for lack of prosecution."The Employee appealed the Rights Commissioner's Decision to the Labour Court on the 27th November, 2007 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Court heard the appeal on the 23rd July, 2008 the earliest date suitable to the parties in Westport.
WORKER'S ARGUMENTS:
3. 1. The Company failed to calculate the correct annual leave entitlement due to the Employee in 2005.
COMPANY'S ARGUMENTS:
4. 1. The Worker was entitled to 14.5 days annual leave and our records clearly show that in fact he took 18 days in total.
2. On termination a payment representing four weeks pay was made to the Worker in full discharge of any other entitlements he may be due.
DETERMINATION:
At the commencement of this appeal hearing the Respondent pointed out to the Court that the original claim was presented to the Rights Commissioner some 14 days after the expiry of the time limit prescribed by Section 27(4) of the Organisation of Working Time Act 1997. The Claimant told the Court that he was in hospital in the period leading up to the expiry of the time limit and that he was not in a position to attend to the matter.
Section 27(5) of the Act allows the Court to extend the time for the bringing of a claim where reasonable cause for so doing is shown. It is well settled that it is for a Claimant seeking an extension of time to both explain the day and put for ward a reasonable excuse for the delay. In this case the Court is satisfied that the Claimant has met that standard. Accordingly the Court determined to extend the time for the bringing of the claim.
On the substantive claim, the Claimant contends that he did not receive his full entitlement to annual leave while employed by the Respondent. The Respondent produced records to the Court which showed the during the currency of his employment the Claimant received 18 days paid holidays. His entitlement in respect of his period of employment with the Respondent was 14.5 days.
The Court accepts that the records produced are accurate. On that basis the Court is satisfied that the claim herein is not well founded. Accordingly the Claimant’s appeal is disallowed and the decision of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
1st August, 2008______________________
JFChairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.