FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : JURYS INNS GROUP LIMITED TRADING AS JURYS INN HOTEL PARNELL STREET - AND - BARBARA NIKODEM DIVISION : Chairman: Mr Haugh Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal of a Rights Commissioner's Decision R-146594/146371-WT-14/JOC
BACKGROUND:
2. A Rights Commissioner hearing took place on the 4th March 2015, and a Decision was issued on the 23rd June, 2015.
The Worker appealed the Decision of the Rights Commissioner to the Labour Court on the 2nd July 2015, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 15th September 2015.
DETERMINATION:
It was agreed between the Parties that the correct legal name of the Respondent for the purposes of the within appeal is Jurys Inns Group Ltd and that the Appellant was employed at all material times at Jurys Inn Dublin Parnell Street.
The Appellant commenced employment on 18 August 2008. Her employment with the Respondent terminated in July 2013. The Form P45 issued to the Appellant states that her employment ended on 25 July 2013. Prior to the termination of her employment, the Appellant was on long-term sick leave from August 2010 through to the date of cessation of employment.
The Appellant’s final payslip includes a payment for €788.79 in respect of accrued annual leave up to the date of termination. The Appellant’s case is that the aforementioned payment relates only to the annual leave she accrued up until the commencement of her period of sick leave only. She is seeking an additional payment in respect of annual leave which she believes she is entitled to for the aforementioned period of sick leave.
The Appellant’s complaint to a Rights Commissioner under the Organisation of Working Time Act 1997 (the “1997 Act”) was received by the Workplace Relations Customer Service on 30 June 2014 i.e. almost 12 months after the date of the termination of her employment with the Respondent. When the matter came before the Rights Commissioner the Appellant did not make an application to extend the time period within which to present her complaint. The Appellant gave evidence to the Court, however, that she had referred a complaint to the Workplace Relations Customer Service on an earlier date, within 6 months of the date of the cessation of her employment, which she believed she had made under the 1997 Act but which appears to have been mistakenly processed under an alternative Act. This evidence was not disputed by the Respondent. The Court is satisfied, therefore on the evidence before it, that the Appellant has demonstrated reasonable cause for the delay in presenting her complaint under the 1997 Act.
Section 19 of the 1997 Act was amended by section 86 of the Workplace Relations Act 2015, with effect from 1 August 2015, to provide for the accrual of statutory annual leave during periods of certified sick leave, subject to stated limits. Prior to 1 August 2015, section 19 as enacted clearly linked the accrual of annual leave to time spent by an employee at work and, by implication, excluded periods of sick leave. The amendment effected by section 86 of the Workplace Relations Act 2015 does not have retrospective effect. As the Appellant’s claim relates to the period August 2010 to July 2013 it predates the commencement of section 86 and is therefore without merit.
The Court so finds and dismisses the appeal.
Signed on behalf of the Labour Court
Alan Haugh
1st October, 2015______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.