SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
ROBERT ROBERTS PLC
(REPRESENTED BY WILLIAM FRY, SOLICITORS)
- AND -
(REPRESENTED BY MICHAEL D. MURRAY & CO. SOLICITORS)
Chairman: Mr Flood
Employer Member: Mr Keogh
Worker Member: Mr. Somers
1. Appeal against Rights Commissioner's Decision WT5810/01/GF.
2. The worker is a merchandiser and commenced her employment with the Company in 1982. Her claim is that she has not received any holiday or public holiday pay since 1988, and that she has not received National Pay Increases over the past 13.5 years. The worker is claiming a total of €16,118.15. The Company claims that from 1988, following a review, the worker has been employed as a contractor, and it does not accept that she is an employee of the Company.
In September 1998, the worker contacted the Department of Social Community and Family Affairs about her status. The Department decided that she was employed under a contract of service and that a normal employer/employee relationship existed. The Company appealed the decision to the Social Welfare Appeals Office but the appeal was disallowed. The Company informed the worker that it would appeal its case to the High Court. A hearing date was set for the 5th of July, 2001, but, in the event, the Company withdrew the appeal.
The worker then made her claim to a Rights Commissioner under the Organisation of Working Time Act, 1997, (the Act) and his findings and decision were as follows:-
"The Act states the Rights Commissioner shall not entertain a complaint if it is presented after the expiration of a period of 6 months on the day of the contravention to which the compliant relates. Even allowing for discretion I must find the complaint to be clearly out of time. Therefore, I decide it fails."
The worker appealed the decision to the Labour Court on the 14th of November, 2001, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 14th of August, 2002, the earliest date suitable to the parties.
3. 1. The worker did not have a determination as to her status until 20th of January, 1999. This determination was not fixed until all appeals by her employer had been exhausted. This occurred in July, 2001, at which stage she referred her case to the Rights Commissioner.
2. The claim was made in time as it is based on an ongoing breach of the Act and, thus, the limitation period runs from the last such contravention.
4. 1. Since 1988, the worker has acted as an independent contractor and not as an employee employed under a contract of service.
2. The claim is out of time, and the Rights Commissioner's decision confirms this. Even if it were not, the most that the worker could claim for annual leave/public holiday pay would be for the period 1st of April, 2000 to 31st of March, 2001.
3. There is no legal basis for the worker's claim of a shortfall accruing from national pay increases, whether in the 1997 Act or otherwise.
This is an appeal from a recommendation of the Rights Commissioner who found that the complainant’s complaint that she did not receive payment of annual leave and public holiday entitlements back to 1988 was made out of time.
Section 19 of the Organization of Working Time Act, 1997, (The Act) provides that an employee should be entitled to paid annual leave equal to;
(a) four working weeks in a leave year in which he or she works at least 1,365 hours;
(b) 1/3 of working week for each month in the leave year in which he or she works it least 117 hours, or;
(c) 8% of the hours he or she works in a leave year, (but subject to a maximum of four working weeks)
Section 20(1) provides that, subject to certain conditions, it is for the employer to determine the time of which annual leave is granted to an employee provided the leave is granted within the leave year to which it relates or, with the consent of the employee, within the six months thereafter. A leave year is defined in Section 2 (1) as the year beginning on the first day of April.
It is clear that the employer's duty to grant annual leave can be lawfully performed at any time during the leave year to which it relates or, with the consent of the employee, six months thereafter. It follows that an infringement of Section 19 of the Act cannot be held to have occurred until that time scale has expired without the paid leave having been granted.
The complainant made her complaint in August, 2001, within six months of the end of the leave year finishing on the 31st of March, 2001, and the Court therefore finds that the complainant’s complaint in respect of the leave year ending 31st March, 2001, is in time.
EXTENSION OF TIME FOR MAKING COMPLAINT
Section 27(5) of the Act states that, not withstanding subsection (4), a Rights Commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than twelve months after such expiration) if he or she is satisfied that the failure to present the complaint within the period was due to reasonable cause.
The decision of the Social Welfare Appeals Office issued on the 12th of April, 2000. The Appeals Officer found that the complainant was an employee. This would have been within the time allowed for the complainant to bring a complaint for the leave year ending 31st March, 2000. The respondents appealed this decision to the High Court but later withdrew their appeal. The Court, accordingly, finds that there is reasonable cause to extend the time limit for a complaint in respect of the year ending 31st of March, 2000.
The Court finds that the Rights Commissioner erred in finding that the complainant's complaint was made out of time in respect of the leave years ending 31st March, 2000, and 31st March, 2001.
The background to this case is a dispute between the parties as to the employment status of the complainant. The Company claimed that she is “an independent contractor engaged under contract for services.” The complainant’s position is that she is a direct employee of the Company.
The Department of Social Community and Family Affairs gave a decision on this matter confirming that the complainant was an employee in January 1999, and the Social Welfare appeal officer upheld this decision in April, 2000.
The respondents lodged a High Court appeal against his decision, which was listed for The 12th July, 2001, but on the 5th July, 2001, this appeal was withdrawn.
The Court determines that the claimant is entitled to payment for holidays and public holidays for the holiday periods 1st April, 1999, to the 31st March, 2000, 1st April 2000 to the 31st March 2001, 1st April 2001 to 31st March 2002 and 1st April, 2002, to date. The appropriate figures for each period should be agreed between the parties. If they fail to reach an agreement the matter can be referred to the Court for determination.
Signed on behalf of the Labour Court
11th November, 2002______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.