FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : WATERFORD MANOR HOTEL - AND - ALIAKSEI HURYN DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appealing Against a Rights Commissioner's Decision R-096472-WT-10/JOC
BACKGROUND:
2. The worker was employed as a waiter on a full-time basis on two occasions - from June, 2003, to September, 2004, and April, 2005, to April, 2010. He was rostered on average for 45 hours per week, including every Sunday. The worker's case is that he worked approximately 8 hours on Sundays but never received any Sunday premium. The Company's case is that the worker was paid all monies due to him and that it had provided accommodation and meals for him.
The worker referred his case to a Rights Commissioner whose decision was as follows;
"Based on uncontested evidence I find the claim to be well founded and I award him €800 in compensation."
Both parties appealed the decision to the Labour Court - the Company on the 25th May, 2011, and the worker on the 28th June, 2011, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 14th September, 2011, in Waterford. 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 that the Employer was in breach of Section 14 when it failed to pay him a premium for working on Sundays. The Rights Commissioner upheld the complaint and awarded the sum of €800.The Complainant appealed the quantum of the award decided by the Rights Commissioner. The Employer also appealed the Decision of the Rights Commissioner.
The Complainant was employed by the Respondent from 6th April, 2005, until 11th April, 2010. The claim was referred to the Rights Commissioner on 11th October, 2010.
Section 27(4) of the Act allows for complaints to be presented within 6 months of the alleged contravention and section 27(5) allows the Court to extend the time for the bringing of a claim where reasonable cause for so doing is shown. In this case the Complainant did not seek such an extension of time and in any event he outlined the reasons why he did not lodge a complaint beforehand.
As the complaint was not lodged with the Rights Commissioner Service until 11th October 2010, which is outside the six-month time limit, the Court has no jurisdiction to hear the complaint and, accordingly, overturns the Rights Commissioner’s Decision.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
26th September, 2011______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.