FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MURRAY TIMBER (BALLON) (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - WOJCIECH WROBLEWICZ (REPRESENTED BY P.C.E.) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. An appeal against a Rights Commissioner's Decision r-108203-wt-11/JT.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 2nd March 2012 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. Three Labour Court hearings took place on the 12th September 2012, 13th December 2012 and on the 27th March 2014. The following is the Determination of the Court.
DETERMINATION:
This matter came before the Court by way of an appeal by Wojciech Wroblewicz (the Claimant) against the Decision of a Rights Commissioner in his claim against Murray Timber (Ballon) t/a Murray Timber Group (the Respondent) under the Organisation of Working time Act 1997.
The only point raised in the appeal is a claim by the Claimant that he was entitled to accrue annual leave while on sick leave. In advancing that claim the Claimant relied on the Decision of the CJEU in Joined Cases C-520/06 and C-350/06Stringer and others v. HM Revenue and Customs sub nom Commissioners of Inland Revenue v. Ainsworth and others Schultz-Hoff v. Deutsche Rentenversicherung Bund[2009] IRLR 214. In that case the Court of Justice held that the entitlement of workers to four weeks paid holidays per year, guaranteed by Article 7 of Directive 2003/88/EC cannot be made dependant on the number of hours worked in a leave year.
At the hearing of this appeal in December 2012 the representative of the Respondent objected to this matter being heard by the Court on appeal on the basis that it had not been raised at first instance. The Court, with the agreement of the parties, asked the Rights Commissioner to clarify if this matter had been before him. By letter dated 18thDecember 2012 the Rights Commissioner confirmed that the matter before the Court had not been referred to in the original reference nor had it been raised in the course of the hearing before the Rights Commissioner. The Rights Commissioner’s letter was furnished to the parties.
Position of the parties
The Respondent contends that the Court has no jurisdiction to entertain this matter as it was never adjudicated upon at first instance. The Claimant contends that he had brought a claim before a Rights Commissioner contending that he did not receive four weeks holidays in the leave year in question. It was submitted on his behalf that the claim remains the same but that the argument in support of the claim may be different.
Conclusion
It seems clear to the Court that the case pursued by the Claimant before the Rights Commissioner was that the Respondent failed to provide him with the annual leave to which he claimed to have accrued by reference to the time that he actually worked in the leave year to which the claimed leave related. He was unsuccessful in that claim.
The claim now being pursued by the Claimant is that he was entitled to annual leave in respect of a period during which he was absent from work due to an injury. The Court is satisfied that the claim now being pursued is different in substance to that pursued before the Rights Commissioner.
The jurisdiction of the Court under the Act is exclusively appellate in nature. It is founded on a valid decision of a Rights Commissioner on the same question as that upon which the Court is asked to adjudicate. In this case the question which the Court is called upon to determine was never before a Rights Commissioner and there is no Decision of a Rights Commissioner on that question. Consequently the Court lacks jurisdiction to determine this case.
Signed on behalf of the Labour Court
Kevin Duffy
CR______________________
7th May, 2014.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.