FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : PEAMOUNT HOSPITAL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - DR ABDUL MONEM JANJUA (REPRESENTED BY FRANCES E. BARRON & CO. SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appeal against a Rights Commissioner’s Decision R-073664-FT-08/TB.
BACKGROUND:
2. This is an appeal by Dr. Abdul Monem Janjua against the Decision of a Rights Commissioner that the complaint he made against Peamount Hospital under the Protection of Employees (Fixed-Term Work) Act 2003 was submitted outside the time limit permitted by the legislation and that he therefore had no jurisdiction to hear the complaint.
Dr. Janjua appealed the decision of the Rights Commissioner to the Labour Court on the 31st July 2009, in accordance with Section 15(1) of the Protection of Employees (Fixed-Term Work) Act, 2003. A Labour Court hearing took place on the 28th October 2009.
DETERMINATION:
Dr. Abdul Monem Janjua (the Complainant), a Non-Consultant Hospital Doctor, worked on a series of fixed term contracts with Peamount Hospital (the Respondent) from 1st July 2005 until 30th June 2008, when he was let go. The Complainant presented a complaint to a Rights Commissioner in December 2008, claiming that he had a right to a contract of indefinite duration in accordance with Section 9 of the Act and that his dismissal amounted to victimisation within the provisions of Section 13(1)(d) of the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). Furthermore, at the hearing before the Rights Commissioner, the Complainant submitted a claim under Section 6 of the Act, stating that he had been less favourably treated than a comparable permanent employee.
A Rights Commissioner's hearing took place on 21st May and 5th June 2009. In his decision dated 24th June 2009, the Rights Commissioner found that in accordance with Section 14(3) each of the claims had been submitted out of time and in accordance with Section 14(4) that reasonable cause for extending the six-month time limit had not been shown. Accordingly, he found that the complaints were not well-founded.
On 31st July 2009 an appeal against this decision was received from the Complainant.
A Labour Court hearing took place on 28th October 2009.
Complainant's Arguments:
Preliminary Issue:
Ms. Rachel McCrossan B.L. for the Complainant stated that he had until 29th December 2008 to present his claim to the Rights Commissioner and as he had presented it on or before that date it was, therefore, submitted in time. In any event, she contended that if the Court does not accept that the time limit fixed under Section 14(3) of the Act was complied with, reasonable cause can be shown to extend that time limit, as provided for under Section 14(4) of the Act.
Ms. McCrossan stated that the claim form referral had been sent by the Complainant by ordinary pre-paid post to the Rights Commissioner on or about 21st December 2008, by faxed transmission on 29th December 2008 and personally by hand on Tuesday 30th December 2008.
Furthermore, the fact that the Complainant was engaged in negotiations with the Respondent up to the time he submitted his case to the Rights Commissioner constitutes "reasonable cause" for the time limit to be extended.
Respondent's Arguments:
Preliminary Issue:
Ms. F�ona Higgins, IBEC representative for the Respondent, stated that the only evidence available to demonstrate the date when the claim was lodged with the Rights Commissioner is a copy of the complaint form recorded by the "Labour Relations Commission Rights Commission" Service (the Service) date stamped "31st December 2008".
The Complainant ceased to be employed by the Respondent on 30th June 2008, therefore, he had until 29th December 2008 to lodge his complaint with the Rights Commissioner Service and, therefore, by not lodging it until 31st December 2008 it was out of time.
The Complainant has failed to put forward any satisfactory explanation for the delay which might constitute any "reasonable cause" to extend the time limit. The negotiations he was engaged in refer to matters unconnected with his claims under the Act.
Conclusion of the Court:
The Law
Section 14:
- (3) 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 or the date of termination of the contract of employment concerned, whichever is the earlier.
(4) Notwithstanding subsection (3), 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 (3) (but not later than 12 months after the end of that period) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.
The Court accepts that the time limit for lodging a claim may be extended to 12 months from the date on which the claim arose, provided the Complainant can satisfy the requirement of showing reasonable cause as to why the claim was not brought within 6-months of the date of the alleged contravention of the Act. In this case it is accepted by both parties that the date on which the alleged contravention occurred was the termination of the Complaint's contract on 30th June 2008.
In the view of the Court, the requirement of " reasonable cause" is not an unduly onerous one. A complainant must show reasons which both explain the delay and justify it and must also demonstrate that except for those reasons the case would have been referred in time.
The test for establishing if reasonable cause is shown was set down by this Court in Determination No. 0426 -Cementation Skanska and A Workerin the following terms:-
- "In considering if reasonable cause exists, it is for the claimant to show that there are reasons, which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time.
The claimant's failure to present his or her claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence, there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.
The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. The Court should consider if the respondent has suffered prejudice by the delay and should also consider if the Claimant has a good arguable case"
The Complainant stated that he had been in negotiations with the Respondent on a number of issues concerning his contract and his conditions of employment between July and December 2008. Mr. Patrick Fitzgerald, Director of Human Resources, on the other hand denied that these discussions had anything to do with the issue of his continuing on a contract of employment and held that the Complainant had been informed on 23rd June 2008 that his contract of employment was not going to be renewed. Furthermore, he said that the negotiations referred to were centered on the Complainant's nine claims for outstanding monies due over the tenure of his employment. The negotiations also dealt with his expression of interest in providing GP services to the Respondent on a contract for services basis.
Ms. McCrossan informed the Court that a proposal to settle these matters was put to the Complainant on 15th December 2008, however, he did not accept it and he formed the opinion that it was necessary to seek redress and refer the matter to an independent body. She submitted to the Court that while the nine claims are the subject of separate legal proceedings under the Organisation of Working Time Act, 1997 and the Payment of Wages Act, 1991, they demonstrate how he was treated less favourably than a comparable permanent employee while he was employed on fixed term contracts.
Ms. Higgins highlighted the inconsistency between the Complainants evidence given at the Rights Commissioner hearing and that given at the hearing before the Labour Court. She said that at the former hearing he made no mention of sending the form by ordinary post or by fax transmission. She told the Court that at the Rights Commissioner hearing he had stated that he had personally delivered the form to the Receptionist at the Service, not on Tuesday 30th December 2008 but on the Monday - 29th December 2008.
Court findings
Section 14 (3):
The Complainant held that his claims were submitted to the Rights Commissioner in time. The only evidence made available to the Court was the claim form date stamped 31st December 2008 received by the Labour Relations Commission, Rights Commission Service. This evidence was supported by the "Post Book" held at the Receptionist desk at the Service, which showed an entry on 31st December 2008 stating that a "Fixed Term" envelope had been handed in on that day. There was one entry for the previous day which was clearly unconnected with this case.
The Court notes that the Complainant said he made a number of attempts to ensure his claims were submitted on time. He told the Court that he had posted the claim form on or about 21st December 2008, however, as his wife was anxious about the post at Christmas time he decided to send a copy by fax transmission and also to deliver one by hand, after Christmas. He told the Court that he turned up at the Service on Monday 29th December 2008, however, as the office was closed he turned up again the following day and hand delivered it on that day.
The Court has considered the written and oral submissions of both parties. The available independent evidence demonstrates that the Complainant lodged the claims two days outside of the time limit set down by the Act.
Section 14(3) states that"A Rights Commissioner[and on extension the Labour Court on appeal]shall not entertaina complaint under thissection...(our emphasis). It is, therefore, clear that the Court has no discretion to allow the complaint once it is outside of the time limit, unless it is save by Section 14(4).
Section 14(4):
The Complainant was insistent that he had submitted the complaint form in time and, therefore, he provided no reasons for the delay. Unfortunately the independent evidence does not support this contention which shows that the complaint was not lodged until 31st December 2008.
However, his legal advisors submitted that the fact he was engaged in negotiations with the Respondent up to the time he submitted his case to the Rights Commissioner should be considered as constituting "reasonable cause" for the time limit to be extended.
The Court takes the view that as the proposals which emerged from the negotiations were submitted to the Complainant for consideration on 15th December 2008, that still left ample time for the claims to be presented to the Rights Commissioner within the time limits set down under the terms of Section 14 (3).
The Court is not satisfied that a causal connection exists between the circumstances pleaded by the Complainant's representatives and the delay. The Court is not satisfied that had those circumstances not been present he would have initiated the claim in time. The Court is satisfied that no reasonable cause has been shown which prevented him from delivering the form on time.
Taken together with the Court's finding that the claim was lodged on 31st December 2008 and, therefore, outside the 6-months time limit, and it's finding that there is no causal connection between the negotiations and the failure to file the claim until the 31st of December 2008, the Court finds that the criteria set out in Section 14 (4) of the Act have not been met and there is no reasonable cause for extending the time for filing the complaint. The Court consequently finds that the claim filed herein on the 31st December 2008 is barred and cannot be entertained.
Section 6 claim
The Court accepts that the first occasion the Section 6 complaint was submitted was at the hearing before the Rights Commissioner. Since this was similarly out of time, the Court has no jurisdiction to hear same.
- (5) A complaint shall be presented by giving notice of it in writing to a Rights Commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.
(6) A copy of a notice under subsection (5) shall be given to the other party concerned by the Rights Commissioner.
While the Minister has not stipulated a specific form for the submission of a claim under the Act, the Service has devised its own procedures for submitting complaints, which require such complaints to be submitted in writing. The Service then send a copy of that complaint to the Respondent and proceed to set up a hearing to investigate the matter. In this case the Court is satisfied that none of these steps were undertaken in terms of a claim concerning the Complainant's conditions of employment being less favourable than a comparable permanent employee. Consequently, this claim was not properly submitted in accordance with the terms of the Act.
Determination:
The Court dismisses the appeal on the preliminary point. It does not have jurisdiction to hear the substantive case and upholds the Decision of the Rights Commissioner.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
4th December, 2009______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.