Complainant

Respondent

Anonymised Parties

A Worker

A Local Authority

Representatives

N/A

N/A

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-00031615-001

16/10/2019

The complainant retired on medical grounds on 5th November 2018. He is claiming that that the method for calculating payment of annual leave accrued at retirement is at odds with the provisions of the Organisation of Working Time Act, 1997.

The complainant stated that there are two flaws in the way in which accrued annual leave payments are calculated for an employee who is retiring and which negatively impacted him. He stated firstly that there is a division of weekly pay by 7 to determine a daily rate which he claims is incongruent with the hourly rates and secondly that the utilisation of days (9 hours worked) and nights (15 hours worked), as individual units of leave, means that there is a disparity between the two individual units.

The respondent stated that annual leave granted to all personnel in the services is expressed in days and has never been calculated or granted in units of hours. It was also stated that in cases where annual leave is undertaken at the time of retirement, employees are paid equal to the pay, calculated at the normal weekly rate, or as the case may be, at a rate proportionate to the normal weekly rate, that the employee would have received had he or she been granted that annual leave.

Preliminary Point:

The Complainant stated that he did not submit his complaint to the WRC until October 2019 because he was attempting to deal with the matter internally.

In making my decision on the preliminary matter, I must have regard to the Labour Court decision in the matter of Brothers of Charity Services Galway v Kieran O’Toole [EDA 177] where it was held:-

·         “The Court cannot accept that deploying the Respondent’s internal procedures operated to prevent the Complainant from initiating the within complaints within the statutory time limit provided under the Acts.”

Similarly, in Business Mobile Security Ltd t/a Senaca Limited v John McEvoy EDA 1621 the Labour Court held that the claim was statute barred:-

·         The Court finds that in the particular circumstances of this case the Complainant made a choice and must take the consequences of that choice. He chose not to pursue a complaint under the Act, allowed time to pass and found himself statute barred when his chosen procedure did not resolve the matter to his satisfaction.”

I am satisfied that the same principles apply in the instant matter, as in the cases above, and am of the view that the Complainant cannot circumvent the time limits set out in the Act by seeking to rely on an internal procedure that did not prevent him from bringing his complaint within the statutory time limit. I must therefore find that the within claim was out of time when it was presented to the Workplace Relations Commission on 16th October 2019.

For all the reasons set out above, I find that the complaint under the Act is statute-barred and is therefore not well founded.