WTC/14/51 DETERMINATION NO. DWT14100
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
WATERFORD CITY COUNCIL
- AND -
Chairman : Mr Duffy
Employer Member : Ms Doyle
Worker Member : Ms Tanham
1. Appeal of Rights Commissioner's Decision R-136696-WT-13/MMG.
2. The case before the Court concerns the Worker's appeal of Rights Commissioner's Decision R-136696-WT-13/MMG. The dispute relates specifically to the Worker's claim that during the course of his former employment with the Council, he did not receive his proper leave entitlements. The Employer rejects the Worker's claim. The matter was referred to a Rights Commissioner for investigation. On the 24th March 2014 the Rights Commissioner issued his decision as follows:
"In consideration of all the matters before me it is my decision therefore that the complaint must fail".
On the 11th April, 2014 the Worker appealed the decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The following is the Determination of the Court:
This is an appeal by Declan Walsh (the Claimant) against the decision of a Rights Commissioner (erroneously referred to as a “Determination”) in his claim against his former employer, Waterford City Council (the Respondent). The complaint relates to time off in respect of public holidays to which the Claimant claims an entitlement.
The claim was presented to the Rights Commissioner on 8th August 2014.
The Respondent’s defence to the claim is based on two grounds. Firstly is contends that the Claimant was not an employee within the meaning of the Act when he presented his claim in that he had retired on or about 30th November 2011. Secondly, the Respondent contends that the claim was presented outside the time limit prescribed by s.27 of the Act. both points appear to have been accepted by the Rights Commissioner in finding against the Claimant.
The first point taken by the Respondent is misconceived. It is clear from the statutory definition of an employee that it includes a former employee. The second point of objection is, however, clearly sustainable. Any contravention that may have occurred in this case accrued on the date of the Claimant’s retirement on 30th November 2011, at the latest. His claim under the Act was presented on 8th August 2013. That was not only outside the six month time limit prescribed by s.27 of the Act but is also outside the maximum duration of any extension that the Court could give.
In these circumstances the Court cannot entertain his claim.
The appeal cannot succeed and it is disallowed.
Signed on behalf of the Labour Court
29th October 2014 ______________________
Enquiries concerning this Determination should be in writing and addressed to Sharon Cahill, Court Secretary.