FULL RECOMMENDATION
) SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : TOP SECURITY LTD (REPRESENTED BY MANAGEMENT SUPPORT SERVICES (IRELAND) LIMITED) - AND - WINSTON M LUZA DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioners Decision No: r-132954-wt-13/SR
BACKGROUND:
2. This case is an appeal by the worker of Rights Commissioner's Decision No: r-132954-wt-13/SR. The issue concerns a claim by the worker that he was not afforded his entitlements in compliance with the Organisation of Working Time Act, 1997. The issue was referred to a Rights Commissioner for investigation. A decision issued on 6th September, 2013 as follows
"The complaint was presented to me outside the time limits as laid down in Section 27(4) of the Act for the presentation of complaints and there was no reasonable cause for the failure to present the complaint with those time limits that would justify extending that period in accordance with Section 27(5) of the Act. Accordingly, and as provided for in Section 27(4) of the Act, I cannot entertain the complaint and I must declare that it is not well founded, that it is rejected and is not upheld".
On the 18th September, 2013 the Worker appealed the Rights Commissioner's Decision in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 to the Labour Court. A Labour Court Hearing took place on 22nd November, 2013. The following is the Labour 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 a breach of Section 21 of the Act. The Rights Commissioner held that the claim was out of time and was therefore statute barred. The Complainant appealed the decision of the Rights Commissioner.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Winston Luza will be referred to as“the Complainant” and Top Security Limited will be referred to as “the Respondent”.
The Complainant was employed by Top Security Limited from 27thNovember 2011 until 5thNovember 2012, when the contract on which he worked was taken over by Noonan Security Limited. The Complainant’s employment was continued in accordance with the S.I. No. 131/2003 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (“the Regulations”). Therefore on 6thNovember 2012 the Complainant ceased to be employed by the Respondent and thereafter became an employee of the transferee.
On 8thMay 2013, some months following the date of the transfer the Complainant referred a claim to the Rights Commissioner Service concerning outstanding public holidays for the period prior to 5thNovember 2012 and cited Top Security Limited as the Respondent. The Respondent submitted to the Court that the liability in respect of any alleged outstanding entitlements under the Act transferred to the transferee and accordingly held that it had no liability under the Act.
The Complainant accepted that his employment has transferred to Noonan Security Limited and informed the Court that on transfer he received a new contract of employment; furthermore he stated that he was in receipt of public holiday entitlements since November 2012.
The Court finds that the liability under the Act transferred in accordance with the provision of “the Regulations” to the transferee and, on that basis the complaint against the Respondent is not well-founded.
Determination
For the reasons set out in this Determination the Court has concluded that the complaint herein is not well-founded. The Decision of the Rights Commissioner is varied and the appeal is disallowed.
Signed on behalf of the Labour Court
Caroline Jenkinson
2nd December, 2013______________________
CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.