FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : IPT EDUCATIONAL COURSES LTD - AND - MAGDALENA DEMBINSKA (REPRESENTED BY POLISH CONSULTANCY ENTERPRISE) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Nash |
1. Appeal Against Rights Commissioner's Decision R-089486-Wt-10
BACKGROUND:
2. The Worker was employed with the Company from December, 2007 until December, 2009 as a Manager.The Worker referred a case of alleged infringements of the Organisation of Working Time Act, 1997, to a Rights Commissioner for investigation and a hearing was arranged for 19th May, 2010. The Rights Commissioner's Decision was as follows:
" Based on the uncontested evidence of the claimant I award her €990"
The worker appealed the Rights Commissioner's Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 9th July, 2010. The employer failed to appear before the Court on 24th November, 2010, the date set for the hearing.
DETERMINATION:
The Claimant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging breaches of Sections 19 and 21. The Rights Commissioner upheld the complaints and awarded the sum of €990.00.The Claimant appealed the decision of the Rights Commissioner.
The Respondent Company is in Liquidation; it did not attend before the Rights Commissioner or the appeal hearing before the Labour Court.
Mr. Blazey Nowak, Polish Consultancy Enterprise on behalf of the Appellant submitted to the Court that she was entitled to 15 days annual leave, accrued during the period of her maternity leave from 20th February 2009 until 10th December 2009. He also submitted that she was entitled to 6 public holidays, which occurred during that period and a further two public holidays, which occurred in her notice period.
The claim was referred to the Right Commissioner on 2nd February 2010, therefore the Court has jurisdiction to hear complaints referred within 6 months of the alleged contravention. In this case Mr. Nowak sought an extension of the time limit.
Section 27(4) of the Act allows for complaints to be presented within 6 months of the alleged contravention and section 27 (5) provides for an extension of that limit by a further 12 months where reasonable cause has been shown for the Claimant’s failure to present the complaint within that time limit.
Section 27(5) of the Act provides as follows: -
- “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 of such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause”.
Mr. Nowak made an application for such an extension of time on the basis that as soon as the Appellant completed her maternity leave on 10th December 2009; her employment was terminated, as the Company was insolvent. She was on protective leave and had an agreement with her employer to have her public holiday entitlements added to her annual leave entitlements (as provided for under Section 21.1(c) of the Act, on her return from maternity leave and consequently could not have been aware that her employer would default on her entitlements under the Act.
Under the circumstances, the Court is satisfied that reasonable cause has been shown for the failure to present the complaint within the six-month time limit.
Mr. Blazey further submitted that in accordance with Section 23.2 of the Act, the Appellant was entitled to be paid for public holidays, which occurred during the period when she was entitled to notice, (from 10th to 24th December 2009) in accordance with the provisions of the Minimum Notice and Terms of Employment Act, 1973.The Appellant made her complaint in February 2010, within the leave year 1st April 2009 to 31st March 2010; in accordance with Section 27 (5) the Court finds that her complaints in respect of the leave year, 1st April 2008 to 31st March 2009, are also in time. In accordance with Section 23.2 a public holiday entitlement accrues where an employee ceases to be employed during the week ending on the public holiday and has the requisite hours worked in the preceding 4 weeks. In this case the Court is satisfied that the Appellant while on maternity leave maintained her entitlement to public holidays for the duration of her absence and maternity leave qualifies as time worked for the purposes of the Act.
Therefore, the Court finds that the Appellant was not provided with her public holiday entitlements in respect of 17th March, 13th April, 4th May, 1st June, 3rd August, 26th October, 25th and 26th December 2009 and accordingly the employer was in breach of section 21 of the Act.
Based on an examination of the submissions made by both parties the Court finds that the Appellant has an outstanding entitlement under the terms of Sections 19 and 21 of the Act to 15 days annual leave and 8 public holiday entitlements.
The Court awards the sum of €3000.00 as compensation for the breeches of the Act and varies the Rights Commissioner's decision accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
16th December, 2010______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.