FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001 PARTIES : HEALTH SERVICE EXECUTIVE -AND- GERALDINE BEHAN (REPRESENTED BY IRISH NURSES ORGAINISATION) DIVISION : Chairman: Mr McGee Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appeal Of A Rights Commissioner's Decision R-065142-Pt-08
BACKGROUND:
2. The Union appealed the Rights Commissioner's decision to the Labour Court on the 17th February, 2009, in accordance with Section 17(1) of the Protection of Employees (Part-Time) Act, 2001. A Labour Court hearing took place on the 6th October, 2009. The following is the Court's determination:
DETERMINATION:
Background
This matter came before the Court by way of an appeal by Ms Geraldine Behan (the Claimant) against the decision of a Rights Commissioner in her claim against the HSE (the Respondent) under The Protection of Employees (Part-Time Work) Act 2001 (the Act). The Claim relates to the failure of the Respondent to pay the Claimant an unsocial hours' premium of time plus one-sixth in respect of working between 6pm and 8am.
The Claimant is a nurse and a part-time employee within the meaning of the Act. The premium at issue is paid to comparable full-time employees. The Claim was referred to a Rights Commissioner on 19th May, 2008. In a Decision dated 7th January, 2009 the Rights Commissioner upheld the complaint and awarded the Claimant compensation in the amount of €1,000 to include arrears of pay and compensation for contravention of the Act which was found to have occurred.
The within appeal is against the quantum of compensation awarded. There is no appeal by the Respondent against the finding that the employer had contravened the Act.
Position of the Parties
The Claimant contends that the compensation awarded is inadequate in the circumstances of the case. She claims that the contravention first occurred on the enactment of the Act in 2001 and that the redress awarded failed to take account of the full extent of the loss which she suffered.
The Respondent pointed out that the difference in treatment of was rectified by HSE Circular 14/2007, with effect from 2nd April, 2007. It submitted that the failure to pay the claimant the amount due on foot of that circular was due to a difficulty with its computer system. It contends that the claim, insofar as it seeks to recover compensation for loss allegedly accrued since the enactment of the Act, is barred by operation of Section 16(3) of the Act
Conclusion of the Court
The fact that the Claimant was treated less favourably, in respect of her conditions of employment, than a comparable full-time employee is not in contention in this appeal.
There is no doubt that on the enactment of the Act the Claimant became entitled, by operation of Section 9 of the Act, to the same payment for working unsocial hours as that made to comparable full-time employee with whom she was engaged in like work. It appears to the Court that on each occasion on which the Claimant worked unsocial hours and the Respondent failed to pay the premium in issue, a separate contravention of Section 9 of the Act occurred. Undoubtedly the Claimant accrued a cause of action for the Respondent's failure to make those payments at the relevant times. However Section 16(3) provides a limitation of six-months for the bringing of claims under the Act. Section 16(4) provides that where reasonable cause is shown this limitation period may be enlarged by a further 12 months.
The complaint herein was presented on 19th May, 2008. Thus only contraventions of the Act which occurred on or after 20th November, 2007 are cognisable for the purposes of Section 16(3) of the Act. The Rights Commissioner accepted that reasonable cause was shown for an extension of time in accordance with Section 16(4) and, accordingly the cognisable period extended to 20th November, 2006. On the facts of the case the Court is satisfied that the Rights Commissioner was correct in allowing an extension of time to the maximum period within his jurisdiction.
The effect of a time limit is to extinguish any cause of action which accrued before the time limited. It follows that if a cause of action is extinguished any entitlement to redress in respect to the contravention to which it relates is also extinguished. The Claimant is consequently barred not only from claiming arrears in respect of infractions of the Act which occurred outside the time limit but is also prevented from seeking redress by the way of general compensation for the omissions complained of. It follows that the within claim, in so far as it relates to non-payment of the unsocial hours premium in respect of occasions on which she worked the requisite hours before 15th November, 2006, cannot be entertained by the Court.
The arrears of payments in issue were paid with effect from 2nd April, 2007. The amount due from 20th November, 2006 to that date is estimated to have amounted to a further €120.
The Court considers that, taking into account the monies due and the breach itself, which is a serious one, the correct decision is an award of compensation which should be effective, proportionate and dissuasive. The Court measures this award at €3,000 (not including the sum of €120), varies the Decision of the Rights Commissioner, and so determines.
Signed on behalf of the Labour Court
Raymond McGee
9th October, 2009______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.