FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : VINO CLASSICO T/A UNICORN RESTAURANT (REPRESENTED BY FERRIS & ASSOCIATES) - AND - NOUR AMER DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Mr McCarthy |
1. Appeal of Rights Commissioner's Decision No: r-142144-Wt-14/G
BACKGROUND:
2. This is an appeal by the worker of Rights Commissioner's Recommendation No: r-142144-wt-14/GC made pursuant to Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 5th February 2015. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Nour Amer (Claimant) against the decision of a Rights Commissioner in his claim against Vino Classico t/a Unicorn Restaurant (Respondent) under the Organisation of Working Time Act 1997. Neither party appeared before the Rights Commissioner. In those circumstances the claim was dismissed for want of prosecution. The Claimant told the Court that his failure to attend the hearing was due to inadvertence.
The Respondent was advised of the date, time and place of the sitting of the Court at which this appeal would be heard. The Respondent failed to attend the hearing.
The Claims
The Claimant contends that he was not paid for public holidays and that he did not receive paid annual leave while employed by the Respondent. He made a claim under the Act on 17thFebruary 2014. All of the contraventions of the Act of which the Claimant complains occurred more than six months but within 18 months of the date on which his complaint was presented to the Rights Commissioner.
In these circumstances the first issue to be considered by the Court is whether the Claimant has shown reasonable cause for the delay so as to justify the Court in extending the time for the bringing of the complaints. The Claimant told the Court that he and his colleagues had been engaged in discussions with the owners of the business in which he worked in relation to the matters now before the Court. Those discussions continued until the closure of the business in May 2013. There were then further discussions in relation to outstanding moneys owed to him including unpaid wages, redundancy pay and minimum notice. The Claimant was led to believe that all outstanding monies, including the monies now being claimed, would be paid. By October 2013 the moneys had still not been paid and the Claimant sought advice from a citizen’s information centre. He was advised to make a claim under the Act. There was then some confusion as to the correct form to use. These issues were only resolved in February 2014, at which time the Claimant presented the within claims.
The Court is satisfied that the delay in making these claims arose from a genuine belief on the part of the Claimant that the Respondent would pay all outstanding money owed to him and protracted negotiation with the Respondent or his representatives in that regard. A further delay was caused by the Claimant submitting a form to the LRC which he had not signed.
The Court is satisfied that this confluence of events both explain the delay and provide a justifiable excuse for the delay. The Court is further satisfied that were it not for these events the Claimant would have made his claims in time. Accordingly the Court extends the time for the making of these claims from 1stJanuary 2013 to 17thFebruary 2014. Accordingly all of the claims are in time.
The claims
On the uncontested evidence of the Claimant the Court is satisfied that he is due the following payments under the Act:
Public Holidays
1stJanuary 2013 €65
17thMarch 2013 €65
1st April 2013 €65
1stMay 2013 €65
Annual Leave €780 being outstanding in respect of annual leave at the time his employment terminated
The Court further determines that the Claimant should be paid compensation in the amount of €500, in addition to the amounts outstanding, for the contravention of his statutory rights that occurred.
Determination
The Respondent is directed to pay the Claimant the sum of €1,540, being €1,040 in arrears of pay in respect of Public Holidays and holiday pay of €1,040 and €500 in compensation that is unrelated to wages
Signed on behalf of the Labour Court
Kevin Duffy
25th February 2015______________________
AHChairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.