SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
INTEGRATED COMMUNICATIONS LIMITED
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES)
Chairman: Mr Duffy
Employer Member: Ms Doyle
Worker Member: Ms Tanham
1. Appeal of Rights Commissioner's Decision R-133623/133630/133631-WT-13/RG.
2. The Employee appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 22nd September, 2015. The Court heard the appeal on the 31st March, 2015, the earliest date suitable to the parties.
This is an appeal against the decision of a Rights Commissioner in a claim by Radoslaw Ryske (the Claimant) against Integrated Communications Limited (the Respondent) under the Organisation of Working Time Act 1997 (the Act).
The Respondent transferred its business to Sierra Communications Limited following the initiation of the within claims. It is accepted that the transfer of the Respondent’s business came within the ambit of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. 131/2003). In these circumstances parallel claims were taken against Sierra Communications Limited as the successor of the Respondent.
At the commencement of the hearing it was agreed that the question of whether liability resides with the Respondent or Sierra Communications Limited could only arise if the Claimant succeeds in making out his claims under the Act. Accordingly, it was agreed that the substantive claims would first be determined.
The Claimant contends that the Respondent contravened sections 18, 19/20 and 21 of the Act.
The Court accepts that in the period during which the Claimant contends that s.18 of the Act was contravened the Claimant was on lay-off. During a period of lay-off the rights and obligations under the contract of employment are suspended. The Court is satisfied on the evidence that the cessation of the Claimant’s employment was by reason of a bona fide lay-off within the statutory meaning of that term. Accordingly there was no contravention of s.18 during that period.
Section 19 / 20
In his written submission to the Court the Claimant contended that the Respondent contravened s.19 of the Act in requiring him to take annual leave during a period of lay-off. In opening the case the solicitor for the Claimant told the Court that the substance of the complaint under this section was that the Respondent failed to provide the Claimant with the requisite one month’s notice of the requirement to take annual leave.
The obligation to provide notice of a requirement to take annual leave arises under s.20 of the Act and not under s.19. The complaint before the Rights Commissioner was in respect of an alleged contravention of s.20 of the Act. Having considered the evidence the Court is satisfied that the Claimant consented to taking his annual leave without the requisite notice and, in effect, waived his right to notice. In these circumstance the Court finds that s.20 of the Act was not contravened.
This complaint was withdrawn at hearing.
The Court finds that the Respondent did not contravene the Act in relation to the Claimant. Accordingly the decision of the Rights Commissioner is affirmed and the appeal is disallowed.
In these circumstances there is no need to address the issues raised under the (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. 131/2003)
Signed on behalf of the Labour Court
27th April 2015______________________
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.