FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : PUBLIC APPOINTMENTS SERVICE (REPRESENTED BY PUBLIC APPOINTMENTS SERVICE) - AND - FRANK CONWAY DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appealing Against A Rights Commissioner’S Decision R-0675352-Ft-08/Sr
BACKGROUND:
2. The Claimant submitted an appeal against a Rights Commissioner's Decision to the Labour Court on 21st 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 7th January,2009.
The following is the Court's Determination:-
DETERMINATION:
Introduction
This is an appeal by Mr Frank Conway (hereafter the Claimant) against the decision of a Rights Commissioner in his complaint against the Public Appointments Commission (the Respondent) made under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act).
The Claimant contends that while employed by the Respondent as an interviewer he was paid less that a comparable full-time employee contrary to s. 6 of the Act. The Claimant last worked for the Respondent on 17th August 2007. He presented his complaint to the Rights Commissioner on 15th July 2008. The Rights Commissioner decided that the complaint was presented outside the six month time limit prescribed by s.14(3) of the Act and he declined to enlarge the time limited in accordance with s.14(4). The Claimant appealed to this Court.
Background
The factual background to this dispute is not in contention and can be briefly stated.
The Claimant is a former civil servant having retired as an Assistant Principal Officer in September 2004. He was subsequently appointed as an interviewer by the Respondent and sat in that capacity on various intermittent occasions between 18th May 2006 and 17th August 2007. The Claimant was remunerated for this work on the basis of a fee per sitting day. However, pursuant to the provisions of the Pensions (Abatement) Act 1965, the Claimant’sfees were abated in respect of the time during which he was engaged by the Respondent so as to take account of the pension which he received.
Initially, the Respondent regarded the Claimant’s engagement as being under a contract for services. The Claimant believed that his correct classification was that of an employee of the Respondent under a contract of service. On 26th March 2008 the Claimant sought a ruling on his employment status by a Deciding Officer of the Department of Social and Family Affairs. By a decision dated 26th May the Deciding Officer held that the Claimant was employed under a contract of service for the purposes of the Social Welfare Acts.
The Deciding Officer subsequently clarified his finding to mean that each individual engagement was to be regarded as a separate contract of service rather than that the Claimant was continuously employed by the Respondent under such a contract.
Following the determination of the Deciding Officer the Claimant presented the within complaint. In substance the Claimant contends that he is a fixed-term employee of the Respondent within the meaning of the Act and that he is remunerated at a rate less than that of a comparable full-time employee.
Time limit.
Section 14 (3) of the Act sets out the time limits within which a complaint alleging a contravention of its terms must be presented. The section provides: -
- (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.
Section 14(4) allows for a limited extension of the time limit specified by subsection (3) where reasonable cause is shown. It provided: -
- (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.
As already recorded the within complaint was presented to the Rights Commissioner service of the Labour Relations Commission on 15th July 2008. the last occasion on which the Claimant worked for the Respondent was 17th August 2007. Any contravention of the Act about which the Claimant could complain could only have occurred on or before that date. Hence, the complaint was clearly presented outside the time-limit specified by s.14(3). However the Claimant contends that the Court should grant an extension of time in accordance with s.14(4). In that regard the Claimant correctly pointed out that the correct test under the Act is based on the criterion of reasonable cause and not that of exceptional circumstances applied by the Rights Commissioner.
In advancing his application for an extension of time the Claimant submitted that he could not have pursued his claim under the Act until before his correct employment classification was established. He contended that he was prevented from so doing until the Department of Social and Family Affairs determined this question.
The test for deciding if reasonable cause is shown for the purpose of the corresponding time –limit provision of the Organisation of Working Time Act 1997 was considered by the Court inCementationSkanska (Formerly Kvaerner Cementation) v CarrollLabour Court Determination WTC0338 (October 28, 2003 ).Here the Court said: -
- It is the Court's view that 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 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 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. Here 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.
Here the reason relied upon by the Claimant to explain the delay was need to have his employment classification clarified before proceeding with his claim. It seems to the Court that the existence of a dispute on whether or not a Claimant is or was an employee is not an impediment to the initiation of a claim under the Act. Many cases come before the Rights Commissioners in which the correct employment classification of the Claimant is in issue. That question is inherently within the jurisdiction of the Rights Commissioner and one he or she would first have to resolve before dealing with the substance of the case. Moreover, the time-limit in this case expired on 16th February 2008. The Claimant referred the question of his status to the Deciding Office on 26th March 2008, some six weeks after the time limit expired, and a decision issued some two months later. Having regard to that time frame it could not logically be said that the Claimant’s failure to present his claim before the 16th February 2008 was because he was awaiting a decision on an application which had been made after the expiry of the time limit itself.
A further reason relied upon by the Claimant for the delay was his belief that had he made a claim he would have been excluded from participation in future interview boards. This assertion was strongly denied by the Respondent.
The Court cannot accept that there is any basis for the Claimant’s apprehension in that regard. Further, the Act itself makes adequate provision for the protection of employees against penalisation of the type apprehended by the Claimant. This reason could not constitute reasonable cause for the purposes of the Act
Having regard to all the circumstance of this case the Court is satisfied that the reasons proffered by the Claimant neither explain or justify his failure to present his claim within the six month time limit prescribed by s.14(3) of the Act. Accordingly there is no basis upon which the Court could exercise its discretion to enlarge the time limit under s.14(4).
Determination
The Court is satisfied that the Rights Commissioner was correct is refusing to entertain the within claim. The decision of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
15th February, 2010______________________
DNChairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.