labour court policy re back dating claims

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weston

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I have been advised that if i win a pending industrial dispute in the labour court that they can only backdate a claim up to six months does anyone know if this is true
 
LC can recomend backdating for full period, but more than likely will pay your claim (if pay increase is issue) , and ask both parties to agree a deal on backdating, a set sum etc ....
 
The Organisation of Working Time Act covers things like holidays, public holidays, rest periods etc. not pay increases. The outcome is not a recommendation but a legally binding decision. The Act says that;
A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
(5) Notwithstanding subsection (4), a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.

This does limit the period that the Rights Commissioner can consider. You will need to have a reasonable argument to convince the Rights Commissioner to give you the 12 month extension.

The decision of the Rights Commissioner can be appealed to the Labour Court. An example of cases which went to the Labour Court that looks at the issue of time limits and what is covered is case DWT0544, 0141 etc. (search under recommendations at www.labourcourt.ie). You may find other cases there that will help you prepare.
 
Whilst Greenfield is correct about the time limits within which a claim must be brought under the OWT Act, this does not answer Weston's original question.

If a claim is brought within time (i.e. within six months), the Labour Court has discretion to make an award that fully recompenses the relevant employee. In other words the Labour Court can look back as far as they want in arriving at an appropriate verdict - i.e. if the claim relates to an ongoing set of circumstances that contravene the relevant Act, the Labour Court may look back to when that set of circumstances began in arriving at a view as what constitutes appropriate compensation for the employee - provided that the employee brings the claim within 6 months of the ending of the set of circumstances that forms the basis of the claim.

If the set of circumstances began 5 years ago and continued until 2 months ago - compensation will be viewed in relation to the contravention over the entire 5 years (and not just the past 6 months).
 
I would like to thank the people who replied to my request they were very helpfull
 
Apologies, I didn;t take the time to fully explain why I was quoting that section. The time limit defines the extend to which the Labour Court can backdate an award. For example, if you read the determination DWT0544, the Labour Court explains how they decided what dates the contravention on annual leave occured. NiallP is of course right, the Labour Court can make an award that is not limited to the value of the lost holidays etc within that limited period. In my experience, the Labour Court does heed the limitations but often add on an extra amount to "dissuade" the employer from repeating the infringement, and increasingly is more likely to do that. Maybe the OP can say what he is claiming (i.e. holidays, public holidays etc for what dates) and what date he lodged the claim and we can give him an opinion of what periods the Labour Court will consider.
 
the claim is for holiday pay and claim is on record with union and ongoing since 1999 my terms and conditions state 'holiday pay is the average of the previous 13 weeks pay'
but the company only pay basic and not the average bonus. overtime or expenses
 
the claim is for holiday pay and on record with union since1999 my term and conditions state 'holiday pay will be the average of the previous 13 weeks pay' the company only pay basic and do not include bonus .overtime or expenses
 
The relevant legislation that determines how an employer calculates holiday pay is http://www.irishstatutebook.ie/1997/en/si/0475.html

If you look at section (3) "Normal weekly rate of pay" - there are two subsections (2) and (3) which consider how to define a normal weekly wage. Subsection (2) looks at employees whose pay is calculated wholly by reference to a time rate or a fixed rate or whose pay does not vary in relation to the work done. If you are covered by this, your normal weekly pay (for holidays) should include any bonus or allowance but not overtime. However, that bonus or allowance have to be regular amounts that do not vary in relation to the work done.

Subsection (3), which your employer seems to at least partially quote in your contract, is for employees not covered by subsection 2, and again excludes overtime.

From what you say, your case will be around this issue. The Labour court have interpreted this as
"In the Court's view the requirement to provide paid holidays must be interpreted as meaning that a worker is entitled to receive the same pay in respect of holidays as he or she would have received (less overtime) had they been working normally during the period of the leave." See case DWT0516


If the Court finds for you, the period that they will consider is limited as discussed before, although, as I said they can, and often do, add a compensatory amount
 
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