Ned O'Keeffe
Question:633 Deputy Edward O’Keeffe asked the Minister for Enterprise, Trade and Employment if a person (details supplied) in County Cork would qualify for redundancy, unfair dismissal or other payment. [1332/08]
View answerWednesday, 30 January 2008
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Written answers
The Organisation of Working Time Act 1997 provides, with effect from 1st March 1998, for a maximum average working week of 48 hours, averaged generally over 4 months. In addition the 1997 Act provides, with effect from 30th September 1997, for a right for an employee to nine public holidays a year.
The 1997 Act also sets out certain minima with regard to annual leave e.g. for the leave year commencing 1st April 1999 and subsequent leave years:
(a)4 working weeks in a leave year in which he the employee works at least 1,365 hours (unless it is a leave year in which he or she changes employment), or
(b)one-third of a working week for each month in the leave year in which the employee works at least 117 hours, or
(c)8 per cent of the hours an employee works in a leave year (but subject to a maximum of 4 working weeks).
Prior to the enactment of the Organisation of Working Time Act 1997 there was no statutory maximum average working week but 9 public holidays and maximum annual leave of 3 working weeks was provided for in the Holidays (Employees) Act 1973 which was repealed by the 1997 Act with effect from 30th September 1997. Under the 1973 Act my Department enforced employees' rights in the courts but the Statute of Limitations provides that such legal proceedings must be instituted within 6 years of the date of contravention of the 1973 Act.
If an employee does not receive his or her statutory rights from his or her employer in relation to the above matters under the 1997 Act it is open to him or her to refer his or her case to a Rights Commissioner for redress.
However, under the 1997 Act referral to a Rights Commissioner must take place within a maximum period of 18 months from the date of contravention of the Act.
Therefore, it would appear that the person referred to by the Deputy is statute barred from pursuing a case under the Holidays (Employees) Act 1973 and the Organisation of Working Time Act 1997.
Regarding unfair dismissal, The Unfair Dismissals Acts 1977 to 2007 protect employees from being unfairly dismissed by laying down criteria by which dismissals are judged to be unfair and by providing an adjudication system and redress for an employee whose dismissal was found to be unfair. A claim for redress under the Acts may be submitted initially to either of the adjudicative bodies specified in the Acts i.e. a Rights Commissioner or the Employment Appeals Tribunal within 6 months of the date of dismissal (this can be extended to 12 months in exceptional circumstances). It would appear, however, that the person referred to by the Deputy is also statute barred from pursuing a case under the Unfair Dismissals Acts 1977 to 2007.
A redundancy situation arises in general where an employee's job no longer exists and he or she is not replaced. On being made redundant, an employee who has two years service or more in the employment and who fulfils the insurability requirements is entitled to a Statutory Redundancy Payment. Employees who were made redundant prior to 25th May 2003 were entitled to half a weeks pay for every year of service under 41 and one weeks pay for every year of service over 41, together with a bonus week.
There are time limits during which an employee can bring a claim for redundancy. The time limit for making a lump sum claim to the Employment Appeals Tribunal is 52 weeks after the date of termination of employment. The Tribunal has discretion to extend the 52-week time limit to 104 weeks provided that it receives the necessary claim within 104 weeks of the date of dismissal and is satisfied that the delay by the employee in making the claim arose through reasonable cause.
Since it is over 104 weeks since any possible redundancy took place the person to whom the Deputy refers is now out of time for bringing a claim against his former employer before the Tribunal.