FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : THOMAS JOSEPH NAGLE - AND - MAREK KUJAWOWICZ (REPRESENTED BY IWU) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appealing against a Rights Commissioner’s Decision R-078898-Wt-09/JOC
BACKGROUND:
2. The worker was employed from the 3rd November, 2007, to 28th February, 2009. His case is that he worked excessive hours in breech of the Organisation of Working Time Act (the Act), that he was not fully reimbursed for annual leave and did not receive Public Holiday premium. He also claims that he did not receive adequate rest periods. The Company's case is that he was paid €306 per week in respect of core duties of 30 hours per week but also did some additional duties which he had requested to boost his income. The Union claims that at times the claimant worked up to 57 hours per week but the Company maintains that this was not possible. It also maintains that he was not asked to work Public Holidays.
The case was referred to a Rights Commissioner whose decision was as follows:
"I find the claimant's case to be well founded and |I award him €1,000 in compensation."
The Company appealed the decision to the Labour Court on the 31st March, 2010, in accordance with Section 28(1) of the Act. A Labour Court hearing took place on the 13th April, 2011, in Cork. The following is the Court's determination:
DETERMINATION:
The Complainant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging breaches of Sections 13, 19 and 21. The Rights Commissioner upheld the complaints and awarded the sum of €1,000.00.The Respondent appealed the Decision of the Rights Commissioner. The Union, on behalf of the Complainant, withdrew the claim under Section 13 accepting that there was no breach of the Act by the Respondent.
For ease of reference the parties are referred to as they were at first instance. Hence Mr. Marek Kujawowicz, is referred to as “the Complainant” and Thomas Joseph Nagle is referred to as “the Respondent”. The Complainant was employed by the Respondent from 3rd November, 2007, until 28th February, 2009, and was paid €10.30 per hour in respect of 30 hours worked per week.
The claim was referred to the Rights Commissioner on 26th April, 2009. The Union made an application for an extension of time in accordance with Section 27(5) of the Act.
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.
It is well settled that it is for a Complainant seeking an extension of time to both explain the delay and put forward reasons, which both explain the delay and afford an excuse for the delay. In this case the Court accepts that there was a delay of over five weeks in submitting the claim form to the Rights Commissioner as a result of inaction by the Union. However, the Court is not satisfied that there are grounds for any further extension of time.
The Court, therefore, determines to entertain all complaints appertaining to contraventions of the Act alleged to have occurred on or after 18th September 2008 (hereafter the relevant period). In so far as the complaint relates to the Respondent’s failure to grant public holidays entitlements on dates prior to the relevant period such claims are statute bared and are not cognisable by the Court. However, as the leave year 2008 to 2009 ended on 31st March, 2009, hence any contravention of the Act arising from the Respondent’s failure to provide the Complainant with the requisite annual leave in respect of that leave year accrued within the relevant period.The Respondent supplied details of the public holidays entitlements in the relevant period in respect of the Complainant. There is no dispute that when he was off on public holidays he was paid for the day, however there is a dispute over two public holidays, 26th December, 2008, and 1st January, 2009. The Respondent submitted that he was off on these days whereas the Complainant submitted that he worked at least a portion of these days. In accordance with Section 21 of the Act, the Complainant must receive one of the entitlements provided by Section 21(i):
- Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely:
(a) a paid day off on that day,
(b) a paid day off within a month of that day,
(c) an additional day of annual leave,
(d) an additional day’s pay:
Accordingly, the Court is of the view that the Complainant has an outstanding entitlement to two public holidays.
The Respondent supplied details of annual leave availed of by the Complainant. As the Complainant’s employment terminated on 28th February, 2009, he therefore had an entitlement to 18.33 days in respect of the leave year which commenced on 1st April, 2008. There is no dispute that he was off and paid for ten days in June, 2008, and the Complainant accepted that he received half days on other occasions. The Respondent gave details of each of the half days it alleged he was off, these come to a total of four and a half days in the leave year concerned. Accordingly, the Court finds that the Complainant had an outstanding entitlement to two public holidays and almost four days annual leave.
Therefore, the Court determines that the Complainant should be paid €360 in respect of the breaches of the Act and in all the circumstances of this case the Court does not believe that an element of compensation is warranted.
The Court varies the Rights Commissioner's Decision accordingly.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
27th April, 2011______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.