FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : THOMAS MELLON T/A MELLON CATERING (REPRESENTED BY PENINSULA BUSINESS SERVICES (IRELAND) LTD) - AND - ANDREJ SALIENIK (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner's Decision No: r-072424-wt-08/JC
BACKGROUND:
2. This case concerns an appeal of Rights Commissioner's Decision No: r-072424-wt-08/JC. The issue concerns a worker who was employed as a Chef but claims not to have been allowed take his rest breaks in compliance with the Organisation of Working Time Act, 1997.
The employer, who had taken over the business claims that the worker was well aware of his entitlements to take breaks as his conditions of employment were identical to his entitlements under the previous employer who ran the business. The employer further contends that the worker could and did take his breaks but that some flexibility was required at times if they became unexpectedly busy.
The dispute was referred to a Rights Commissioner for investigation. Her Decision issued on the 24th March 2010 and found that the complaint was statute barred from being heard as the worker had submitted his complaint six months after the date of the contravention
WORKER'S ARGUMENTS:
3 1 The worker's employment ceased on the 23rd May, 2008 according to the P45 document. As this date is the appropriate one the worker's complaint as submitted to the Rights Commissioner on 21st November, 2008 was in time and the substantive points could have been dealt with at that forum.
2 The worker was not facilitated in taking his breaks in the same manner that had occurred with his previous employer. If he did get breaks it was at different times each day and as there was no-one to cover him, it was not always possible for him to take his breaks at all.
COMPANY'S ARGUMENTS:
4 1 The worker finished his employment on the 19th May 2008 as is stated in his letter of resignation. His complaint was submitted outside of the statutory period of six months and is therefore out of time.
2 The worker always got his breaks while in the employment of the Company. He knew his entitlements and received them each day although there were some occasions when there may have been a delay due to the pressures of business.
3 The worker had no difficulties previously with taking later breaks on occassions. Difficulties only arose in this regard when the worker began working to rule in relation to the taking of breaks.
DETERMINATION:
The Complainant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging breaches of Sections 12 and 17. The complaint under section 17 was subsequently withdrawn at the hearing. The Rights Commissioner held that the complaint under Section 12 had been brought outside the time limit of six months from the date of the contravention of the Act and consequently she had no jurisdiction to hear the complaint. The Complainant appealed the Decision of the Rights Commissioner and sought an extension of time under section 27(5) of the Act.
The Complainant’s employment commenced with the Company on 13th May 2007 and terminated on 19th May 2008. The claim was presented to the Rights Commissioner Service on 21st November 2008, outside the time limit of six months from the date of the alleged contravention of the Act.
Section 27(4) of the Act allows for complaints to be presented within 6 months of the alleged contravention.
Section 27(5) of the Act provides as follows: -
- “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 of such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause”.
Ms. Aoife Marrinan Solicitor for the Complainant told the Court that his contract of employment did not specify details of his meal break entitlements. She explained that the contract he received was identical to the one he had previously worked under for his previous employer and which continued when the company was taken over by the Respondent. She said that the previous employer had ensured that he received his full entitlements to meal breaks and that he was frustrated that the Respondent failed to do so. She informed the Court that the Complainant had raised the subject on a number of occasions with the Respondent but to no avail. On that basis she applied for an extension of time under Section 27(5) of the Act
The test for deciding if reasonable cause is shown for the purpose of the Act was considered by the Court inCementation Skanska (Formerly Kvaerner Cementation v CarrollLabour Court Determination DWT0338 (October 31, 2003). Here the Court said :-
- “It is the Court’s view that in considering if reasonable cause exists, it is for the Complainant 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 Complainant at the material time. The Complainant’s failure to present the 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 Complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”
In all the circumstances the Court is satisfied that the complainant was fully aware of his entitlement to meal breaks and is of the view that no explanation has been put forward to connect the circumstances cited with the delay in bringing the complaint. Accordingly, the Court is not satisfied that the Complainant has put forward a reasonable excuse for extending the time for the bringing of the claim.
Therefore, the Court upholds the Rights Commissioner’s Decision and the Complainant’s appeal fails.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
23rd July 2010______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.