FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : SWORDS PACKAGING & LOGISTICS LTD (REPRESENTED BY ARTHUR COX SOLICITOR'S) - AND - VITALIJS KLAGLISS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appealing of Rights Commissioner's Decision No: r-086463-wt-09/JW
BACKGROUND:
2. This case concerns an appeal by both sides of Rights Commissioner's Decision No: r-086463-wt-09/JW. The issue concerns a worker who was absent on sick leave for a period of time and claims not to have been provided with his correct annual leave entitlement. The dispute was referred to a Rights Commissioner for investigation. His Decision issued on the 12th May 2010 accepting that the complaint was well founded and that the annual leave entitlement for the period April 2009 to August 2009 be granted to the worker within six weeks of the date of the decision.
The Worker and the Employer both appealed the Rights Commissioner's Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time, 1997 on 16th May 2010 and 4th June 2010 respectively.
A Labour Court hearing took place on 16th September, 2010.
The following is the Court's Determination:
DETERMINATION:
The Claimant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging that the employer failed to provide him with annual leave and public holidays contrary to Sections 20 and 21 of the Act. The Rights Commissioner upheld the complaint and ordered the employer to grant the Claimant annual leave entitlements for the period 22nd April to end of August 2009. Both the Claimant and the Employer appealed the Decision of the Rights Commissioner. The Claimant appealed the quantum of the award decided by the Rights Commissioner.
The parties are referred to in this Determination as they were at first instance. Hence, Mr. Klagliss is referred to as the Claimant and Swords Packaging & Logistics Limited is referred to as the Respondent.
Mr. Richard Grogan Solicitor, on behalf of the Claimant, held that the Respondent failed to provide the Claimant with the appropriate annual leave entitlements for the leave year 2009/2010. At the appeal hearing before the Court Mr. Grogan withdrew the claims in respect of the public holidays - 1st June and 3rd August 2009. The Claimant was on sick leave from 22nd April to the end of August 2009.
The claim was referred to the Rights Commissioner on 5th November 2009. 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 20(1) provides that, subject to certain conditions, it is for the employer to determine the time at which annual leave is granted to an employee provided that the leave is granted within the leave year to which it relates or, with the consent of the employee, within the six months thereafter. A leave year is defined in Section 2 (1) as the year beginning on the first day of April.
It is clear that the employer's duty to grant annual leave can be lawfully performed at any time during the leave year to which it relates or, with the consent of the employee, six months thereafter. It follows that an infringement of Section 19 of the Act cannot be held to have occurred until that time-scale has expired without the paid leave having been granted. At the time the claim was referred to the Rights Commissioner the Employer was not in breach of the Act.
Accordingly, the Court finds that the claim was not well-founded and dismisses the Claimant’s appealand accordingly overturns the Rights Commissioner's Decision.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
23rd December 2010______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.