FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : O' LEARY INTERNATIONAL LIMITED (REPRESENTED BY PENINSULA BUSINESS SERVICES LTD) - AND - ALGIRDAS NARKIOVICIUS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision r-126042-wt-12/MMG.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 9th January, 2013. The following is the Labour Court's Determination:
DETERMINATION:
This is an appeal by Algirdas Narkiovicius (the Claimant) against the decision of a Rights Commissioner in his claim against O’Leary International Ltd (the Respondent). The claim was taken under the Organisation of Working Time Act 1997 (the Act). The Rights Commissioner found that the Act was not contravened in relation to the Claimant. The Claimant contends that he was underpaid in respect of annual leave and public holidays and that, contrary to s.15 of the Act, the Claimant was required to work in excess of 48 hours per week.
By agreement between the parties evidence was taken by way of a Statutory Declaration pursuant to the Statutory Declarations Act, 1938.
This case was heard in conjunction with a claim made by the Claimant pursuant to the National Minimum Wage Act, 2000 and overlapping evidence and submissions were made in relation to both cases.
Having considered all of the evidence tendered and the submissions advanced by both parties the Court has reached the following conclusions: -
European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 (S.I. No. 136 of 2012)
The Claimant sought to rely on the provision of S.I. No 136 of 2012 in advancing his claims. In effect he claims that the Respondent contravened certain provision of that Statutory Instrument. There was some controversy as to whether a claim pursuant to these Regulations was ever made at first instance.
What seems clear is that no decision was given by the Rights Commissioner under those Regulations. The Court has only appellate jurisdiction which is founded on a valid decision of a Rights Commissioner. There being no decision by a Rights Commissioner under S.I. No 136 of 2012 the Court has no jurisdiction to consider any complaint grounded on those Regulations.
Time Limit
The within complaints were presented to a Rights Commissioner on 11thSeptember 2012. Section 27(4) of the Act provides: -
- (4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
By application of this provision only such contraventions that may have occurred in the six-months preceding 11thSeptember 2011 are cognisable for the purpose of obtaining redress. Consequently, the reference period, for present purposes, is that between 12thMarch 2012 and 11thSeptember 2012. The Claimant was absent from his employment from 29thFebruary 2012. His employment came to an end on 19thJune 2012. It follows that the Respondent could not have contravened the Act in relation to the Claimant in respect to his working time during the cognisable period.
Holidays
The Claimant contends that the Respondent contravened s.20 of the Act in relation to the rate of pay used to calculate his holidays. It was submitted on his behalf that the date on which a contravention of this section occurred was 31stMarch 2012 (the end of the relevant leave year).
The Respondent contends that the contractual leave year is that commencing on 1stJanuary and ending on 31stDecember of each year.
Turning first to the question of the relevant leave year, s.2(1) of the Act provides that a leave year is a year commencing on 1stApril. There is no provision for a variation of that provision by contract or otherwise. Consequently, for the purpose of applying the Act, a leave year must be construed in line with the statutory definition of that term. That does not, however, avail the Claimant on the facts of the instant case.
It is well settled that where an employee does not receive his or her full entitlement of annual leave a cause of action accrues at the end of the relevant leave year. The High Court so decided inRoyal Liver Assurance Limited v Macken & ors, Unreported, Lavan J, 15thNovember 2002. That case is also authority for the proposition that a cause of action in respect of a public holiday accrues on the date of the holiday in question.
However, where holidays are given and an underpayment is made in respect to either annual leave or a public holiday, the Act is contravened at the point at which the impugned payments are made. It follows that if the Claimant was underpaid in respect of annual leave or public holidays a cause of action would have accrued on the date on which the annual leave commenced or the public holiday occurred. There was no evidence to indicate that the Claimant was on annual leave during the cognisable period. While one public holiday occurred in that period the Claimant had no entitlement in respect of that holiday by reason of his absence from work at that time. Moreover, in addressing the Claimant’s claim under the National Minimum Wage Act 2000, the Court took account of all payment made to him by way of wages over the currency of his employment and that included times during which he was on leave.
Determination
For all of the reasons set out herein the Court is satisfied that the Claimant’s complaints under the Act are not well founded. The decision of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
3rd March, 2014______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.