FTD0816

The facts

The material facts of this case are not in dispute and can be summarised as follows: -

The Claimant was employed by the Respondent and another Local Authority in a temporary capacity between 1991 and 2001. He was appointed to the permanent post of Senior Executive Office with the Respondent on 3rd September 2001.

On appointment the Claimant was placed at the minimum point of the applicable pay scale. Under the relevant regulations governing such appointments a person who has prior permanent service is given incremental credit for that service. However, prior temporary service is not credited.

The Claimant came to believe that the Respondent’s failure to afford him incremental credit for his prior temporary service contravened his entitlement to equal treatment under the Framework Agreement on the rights of fixed-term workers annexed to Directive 99/70/EC.

That Directive was transposed in domestic law by the Protection of Employees (Fixed-Term Work) Act 2003, which commenced on 14th July 2003. The Claimant presented a complaint to a Rights Commissioner pursuant to the provisions of the Act on 12th March 2005. In that claim he sought to rely directly on the Directive in respect of occurrences prior to the commencement of the Act but after the date on which the Directive should have been transposed

Position of the parties

The Claimant contends that he only became aware of the possibility of pursuing a claim under the Directive when the Rights Commissioner issued her Decision inIMPACT v Minister for Agriculture and Food,holding that she had jurisdiction to apply the Doctrine of Direct Effect. That Decision was issued in January 2005. The Claimant contends that the time limit for bringing his claim could only commence when he became aware of the possibility of pursuing it before a Rights Commissioner. He pointed out that his claim was initiated within six months of the date of the Rights Commissioner’s Decision confirming that the claim could be pursued.

The Respondent claims that the time limit runs from the date on which the Directive was transposed in domestic law. In support of that proposition the Respondent relies on the decision of the ECJ to that effect inEmmott v Minister for Social Welfare[1991] ECR 1- 4269. The Respondent further submitted that as a matter of law the Claimant cannot rely on his lack of knowledge or awareness of his legal rights to prevent the time limit running against him.

Conclusion of the Court

The Law

At this stage the Court is only concerned with the question of whether the Rights Commissioner was correct in holding that the within claim is barred by operation of the time limit prescribed by s.14 of the Act. Subsection (3) of that Section provides that a Rights Commissioner may not entertain a claim unless it is submitted within a period of six months after the occurrence of the event to which the claim relates. Subsection (4) provided, in effect, that the time limit may be enlarged by a further six months where reasonable cause is shown.

InEmmott v Minister for Social Welfare[1991] ECR 1- 4269 the ECJ considered a reference for a preliminary ruling by the High Court in an application for an order by way of judicial review directing the defendant Minister to pay the applicant certain monies to which she claimed an entitlement pursuant to Directive 79/7/EEC, concerning the principle of equal treatment in matters of social security. That Directive had not been properly transposed in Irish Law.

The relevant procedural rule required that such an application should be made within three months from the date on which the grounds for the application first arose. The Respondent claimed that the application was outside that time limit and should be dismissed on that account. In a reference for a preliminary ruling the ECJ held that the time could not start to run against the applicant until the Directive relied upon had been fully implemented by the Member State.



Applying the principle enunciated inEmmottto the facts of the instant case it is clear to the Court that the time limit prescribed by s.14 of the Act commenced on 14th July 2003, on which date the Directive was transposed in Irish law. It is equally clear that the right to equal treatment contended for by the Claimant in this case was fully and properly implemented by that legislation. Clause 4 of the Framework Agreement provides for the application of the principle of equal treatment to fixed-term workers. This is transposed by s. 6 of the Act and the language of that section fully comports with that of Clause 4 of the Framework Agreement.

The Court is also satisfied that the Claimant’s lack of knowledge or awareness concerning the correct legal position or the options available to him at the time the Act was enacted cannot avail him in overcoming the time limit. It is well settled that, absent a statutory provision to the contrary, a limitation period runs from the time a cause of action accrues and not from the date on which the plaintiff came to know the nature or extent of his or her legal rights (seeMcDonnell v Ireland[1998] 1 IR 134).

That proposition was put beyond argument in the recent case ofMinister for Finance v CPSU, PSEU and IMPACT.[2007] 18 ELR 36. This was a case in which Civil Servants sought an extension of time to bring proceedings under the Anti-Discrimination (Pay) Act 1974. They claimed that they were unaware that their legal rights had been infringed until the ECJ gave judgment in C- 1/95Gerster v Freistaat Bayern[1997] ECR 1-5253, in which a point identical to that upon which they relied in their substantive case had been decided.

In holding that time could not be extended for the reason advanced Laffoy J. had this to say: -

• Further, under the established jurisprudence in this jurisdiction lack of knowledge or awareness on the part of a claimant, or the absence of a legal precedent which indicates, that, as a matter of law, a claim will have a successful outcome does not prevent a statutory limitation period from starting to run. That is illustrated by the decision of this Court in the Murphy case and the decision of the Supreme Court in the McDonnell case.

Determination

The Decision of the Rights Commissioner is affirmed and the appeal is disallowed.



Signed on behalf of the Labour Court



Kevin Duffy
21st November 2008______________________
AHChairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.