ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014001
Parties:
| Complainant | Respondent |
Anonymised Parties | A Customer Assistant | A Retail Supermarket |
Representatives | In person | McDowell Purcell Solicitors |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00018280-001 | 04/04/2018 |
Date of Adjudication Hearing: 05/11/2018
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant has been employed by the respondent as a Customer Assistant since 2008. The complainant works 30 hours per week and is paid €1800 gross per month. The complainant was absent on sick leave from 7th November 2016 to 4th December 2017. The complaint relates to Public Holiday entitlements that the complainant contends were not provided to her during the first 26 weeks of her absence on sick leave. |
Summary of Complainant’s Case:
The complainant stated that she did not receive Public Holiday entitlements for the first 26 weeks of her sick leave absence in contravention of the Organisation of Working Time Act, 1997. |
Summary of Respondent’s Case:
The respondent stated that the complaint is out of time. The respondent contends that the first 26 weeks of the complainant’s sick leave was from 7th November 2016 until 6th May 2017. The respondent stated that the complaint was lodged to the Workplace Relations Commission on 4th April 2018 and the cognisable period of the complaint is from the 5th October 2017 to 4th April 2018. The respondent contends that as the 26 weeks of sick leave in question is outside of the six-month timeframe for the complaint and in the absence of an application to extend the time by a further six months, the complaint is out of time and must fail. |
Findings and Conclusions:
The Applicable Law Section 41(6) and 41 (8) of the Workplace Relations Act, 2015 provides as follows: “(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.” “(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.” In the instant case, the specifics of the complaint relate to a 26-week period from 7th Nov 2016 to 6th May 2017. The complaint was lodged to the WRC in excess of 6 months after 6th May 2017 and there was no application from the complainant to extend the time limit by a further six months. As the complaint was lodged outside of the six-month time limit permitted by the legislation, I conclude that the complaint is out of time. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Having considered the submissions of both parties, I declare that the complaint is out of time and is therefore statute barred. |
Dated: 20th February 2019
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Key Words:
Public Holiday entitlement, Time Limits, Out of time |