FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MARCHMONT PACKAGING LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - JERZY GEBICKI (REPRESENTED BY POLISH CONSULTANCY ENTERPRISE) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appealing against a Rights Commissioner's Decision r-121630-wt-12/DI & r-121970-wt-12/DI.
BACKGROUND:
2. A Rights Commissioner hearing took place on the 27th September 2012, and a Decision was issued on the 9th January 2013.
The Worker appealed the Decision of the Rights Commissioner to the Labour Court on the 15th January 2013, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 16th April 2013.
DETERMINATION:
The Claimant in this case is absent from work for medical reasons and has been before, and at the time his claim was initiated. He is alleging a contravention of the Organisation of Working Time Act 1997 by his employer Marchmont Packaging in relation to Public Holidays and annual leave. The Respondent told the Court that the mode of benefit provided to the Claimant in respect of Public Holidays is an additional day’s annual leave. The Respondent also told the Court that on the Claimant’s return to work he will be provided with his entitlement to annual leave arising both from s. 19 of the Act and the additional leave accruing under s.21 in respect of public holidays.
At the time the within claims were presented the Claimant was not in a position to take annual leave by reason of his absence from work due to illness. Consequently no contravention of the Act could have occurred and no cause of action could have accrued to the Claimant at that time.
The Respondent gave an undertaking to the Court that it would afford the Claimant his full entitlements when he returns to work. It is only if that undertaking is not honoured that any cause of action might accrue to the Claimant.
In these circumstances this claim is premature and the Court has no jurisdiction in the matter.
Signed on behalf of the Labour Court
Kevin Duffy
CR______________________
30th April, 2013.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.