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2002

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DWT0242

FULL RECOMMENDATION

WTC/02/9
DETERMINATIONNO.DWT0242
(WT6155/01/MR)

SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997



PARTIES :
DF DOYLE & CO. LIMITED + SJ MURPHY & CO. LIMITED
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)

- AND -

THOMAS MCINTYRE
(REPRESENTED BY ARTHUR COMYN, SOLICITORS)


DIVISION :

Chairman: Mr Duffy
Employer Member: Mr Carberry
Worker Member: Ms Ni Mhurchu
SUBJECT:
1. Appeal against Rights Commissioner's Decision WT6155/01/MR.


BACKGROUND:

2. Both Companies are Stevedoring Companies operating in the port of Cork. The worker concerned has been a casual worker since 1973. He was unavailable for work for a number of years due to illness. In June, 2000, he again became available for work.

The issue before the Court is a claim in respect of three Public Holidays, the 25th of December, 2000, the 26th of December, 2000 and the 1st of January, 2001.

The Companies argue that the claimant received holiday pay in excess of his entitlement and this covered his entitlement in respect of Public Holidays.

The claim was referred to a Rights Commissioner for investigation. His findings and decision issued on the 30th of January, 2002, as follows:-

“Based on the evidence before me, I find that the companies have paid Mr McIntyre in excess of his entitlements under the Act and consequently his claim fails”.

“In accordance with Section 27 of the Act, I hereby declare that this complaint was not well founded.”

The worker 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 7th of February, 2002. A Labour Court hearing took place in Cork on the 7th of August, 2002, the earliest date suitable to the parties.


WORKER'S ARGUMENTS:

3. 1. The number of hours holiday pay received by the worker is irrelevant as he is entitled to be paid for Public Holidays if he so qualifies.

2. The worker concerned should receive his entitlement in respect of the 25th of December, 2000, the 26th of December, 2000 and the 1st of January, 2001 for which he qualified.


COMPANIES' ARGUMENTS:

4. 1. The worker concerned received holiday pay in excess of his entitlement which covers his entitlement for Public Holidays.

2. There is no justification for the worker’s claim.


DETERMINATION:

In the course of the hearing of this appeal it emerged that the claimant was never employed by the second named respondent, S.J. Murphy Limited. It appears that this Company acted as pay agent for a number of other stevedoring companies, including a Company by which the claimant was employed at the material time. This Company is not, however, party to these proceedings.

Whilst the claimant was employed by the first named respondent, he did not work the requisite number of hours for that employer in the relevant five week period so as to accrue an entitlement in respect of the public holidays at issue.

On this basis alone the Court must find that the complaint herein is not well founded.


For the sake of completeness, the Court wishes to record its agreement with the approach adopted by the Rights Commissioner in dealing with the substantive issue before him.



Signed on behalf of the Labour Court



Kevin Duffy
27th August, 2002______________________
GB/MB.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Gerardine Buckley, Court Secretary.




 
 
 
 
 
 
 
 
 

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