ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00008875

Parties:

Complaint(s):

Date of Adjudication Hearing: 31/10/2018

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015] following the referral of the complaint(s)to me by the Director General, I inquired into the complaint(s)and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint

Preliminary Issue

The Respondent raised a preliminary issue regarding the applicability of the Working Time Act in the context of a road traffic accident which took place outside of working hours. The complaint under this Section 27(2) relates to Public Holidays over the periods November 2014 to August 2015 and November 2015 to November 2016. The respondent submits that these complaints are out of time and the Adjudicator has no jurisdiction to hear it. The Claimant referred to Section 90 of the Social Welfare Consolidation Act 1995 for the purposes of identifying the road traffic accident as an occupational accident.

The claimant in his submission states that his complaint is taken under 27(2) of the Organisation of Working Time act for withholding Public Holidays accrued during periods of occupational accident -related sick leave. It was the claimant’s submission that the respondent is incorrectly interpreting and applying Section 21(5) and the associated 3rd Schedule of the OWTA, underpinned by an incorrect interpretation of his absence. The claimant submitted this is relevant provision as defined in Section 27(1) (a) (2) of OWTA and required for this referral under Section 5(1)(7) Workplace Relations Act 2015

The claimant stated that he was due the following

25th and 26th December 2014,

1st Jan 17th March 6th April 4th May. 1st June3rd August 25th and 26th December 2015

1st Jan 17th March 28th March 2nd May, 6th June, 1s August and 31st October 2016

The claimant submitted he had a road accident on the 29th October 2014 while travelling home from work, he went out sick on the 30th October (next day) and he reported back on the 31st October 2014.

He went out sick on the 8th November 2014 and reported back on the 7th August 2015.

The claimant had a further sick period from the 28th September 2015 until the 2nd October 2015 and again from the 13th November 2015 until the 11th November 2016 when he returned to work.

Findings

The complaint was received on the 21st June 2017

I find that both parties made written and verbal submissions at the hearing.

I find that the Claimant referred to Section 90 of the Social Welfare Consolidation Act 1995 for the purposes of identifying the road traffic accident as an occupational accident. I find that it is not within my remit to determine the validity or otherwise of this argument.

I find that section 27 subsection 4 provides that a Rights Commissioner shall not entertain a complaint under the 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. Section 27 subsection 5 provides that a Rights Commissioner may entertain a complaint under the Section presented to him or her after the expiration after the period referred to in subsection 4 but not later than 12 months after such expiration if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.

The Claimant confirmed the he had returned from sick leave on the 11th November 2016 and therefore, the Employee received access to the Public Holiday entitlements in the normal manner.

Time limit.

I find that based on the arguments put forward by the claimant I am going to grant an extension as per section 27 subsection 5 of the act to add additional 6 months.

The relevant period under consideration is from the 20th June 2016 to the 21st June 2017

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find the claim for Public Holidays listed from 25th December 2014 to the 6th June 2016 are out of time.

I find that for the relevant period from the 20th June 2016 to the 21st June 2017 the claimant is owed for Public Holidays for the 1st August and the 31st October 2016.

Dated:   29 April 2019

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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