FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : DEPARTMENT OF HEALTH & CHILDREN (REPRESENTED BY CHIEF STATE SOLICITORS OFFICE) - AND - MR PATRICK ROHAN (REPRESENTED BY PATRICIA MCNAMARA & CO. LAW FIRM) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appealing Against Rights Commissioner's Decision R-060076-wt-07/RG.
BACKGROUND:
2. This case concerns an appeal by the Worker of Rights Commissioner's DecisionR-060076-wt-07/RG.The Worker was employed by the Employer from 12th November, 2003 to 14th June, 2007.The Worker referred a case of alleged infringements of the Organisation of Working Time Act, 1997 to a Rights Commissioner for investigation and a hearing was arranged for 8th July, 2008. The Rights Commissioner's Decision was as follows:
- "The claimant ceased employment with the employer on 14th June 2007. The complaint was lodged with the Rights Commission Service on 14th December 2007. The complaint is statute barred under Section 27(4) of the Organisation of Working Time Act, 1997, therefore I do not have jurisdiction in relation to the complaint."
- "The claimant ceased employment with the employer on 14th June 2007. The complaint was lodged with the Rights Commission Service on 14th December 2007. The complaint is statute barred under Section 27(4) of the Organisation of Working Time Act, 1997, therefore I do not have jurisdiction in relation to the complaint."
DETERMINATION:
The Complainant ceased employment with the Respondent on 14th June 2004.
Mr. O’Flionn B.L. on behalf of the Complainant submitted that a complaint pursuant to section 27 of the Act claiming redress in respect of alleged infringements of his statutory rights was handed in to the reception desk at Tom Johnson House, Haddington Road, Dublin 2 – the offices of the Labour Relations Commission and The Labour Court (The Rights Commissioner Service forms part of the Labour Relations Commission). These offices share one reception desk.
The Rights Commissioner heard the complaint on 8th July 2008. The Rights Commissioner held that the complaint had been presented outside the time limit prescribed by section 27 of the Act and in consequence it could not be entertained. It was against this decision that the Complainant appealed under Section 28(i) of the Act.
Furthermore, he argued that the decision of the Rights Commissioner should be set aside and the Court should remit the case back to the Rights Commissioner for a full investigation.
The Rights Commissioner found that the complaint was lodged with the “Rights Commissioner Service” on 14th December 2007. The Court notes that the date stamp on the Rights Commissioner’s copy of the complaint form has a date stamp indicating receipt of the form on 14th December 2007.
Mr. Kerr B.L. on behalf of the Respondent, submitted that the complaint was out of time and was supported in this view by the copy of the form it received from the Rights Commissioner Service, which indicated that it was date stamped “The Rights Commissioner Service on 14th December 2008”. Therefore, he contended that the complaint was out of time and he refuted the Court’s power to refer the matter back to the Rights Commissioner.
Section 27 of the Act provides in relevant part as follows:
- (4) 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.
The Court heard evidence from Ms. Kerry Lyons, Trainee Solicitor with Patricia McNamara & Co Solicitors. She told that Court that on 13th December 2007, she delivered an original complaint form with a covering letter, by hand to the reception desk at Tom Johnson House, Haddington Road, Dublin 2 and for verification purposes, she asked for a copy of both to be date stamped and signed by the receptionist.
Copies of these were presented to the Court for inspection. The date stamp read “Labour Court 13th December 2007” and in a handwritten format the receptionist wrote “16.57 Lucy”. Ms. Lyons told the Court that when she handed in the documents she indicated that they were for the attention of the Rights Commissioner’s Service.
The Court is satisfied that the documents were handed in on 13th December 2007 and were clearly intended for the Rights Commissioner Service. The fact that the Service did not receive them until 14th December 2008, does not override the fact that they were presented to the appropriate reception desk in the correct building within the statutory time limit. Accordingly, the Court is satisfied that the complaint was presented on time under section 27 of the Act.
The decision of the Rights Commissioner is set aside and as the Court has no statutory authority to remit it back to the Rights Commissioner as sought by the Complainant; it will now proceed to hear ade novohearing of the claims.
Signed on behalf of the Labour Court
Caroline Jenkinson
11th December, 2008______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.