FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : DEVI SINGH T/A INDIA LINK (REPRESENTED BY MSS) - AND - PURAN SINGH (REPRESENTED BY MIGRANT RIGHTS CENTRE IRELAND) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner’s Decision No: r-076683-wt-09/RG.
BACKGROUND:
2. This case concerns an appeal by the worker of Rights Commissioner's Decision No: r-076683-wt-09/RG submitted on 15th June 2010 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997.
The following is a preliminary decision of the Court:
DETERMINATION:
This is a preliminary decision of the Court on an application to extend the time for the bringing of a complaint made pursuant to Section 27(5) of the Act.
Facts
The complaint relates to various alleged contravention of the Act relating to the Claimant's hours of work, rest periods, Sunday premium and holiday entitlements. The Claimant was employed by the Respondent from 1st May 2005 until his employment terminated on 17th October 2008. He presented a complaint to the Rights Commissioner on 16th March 2009. The Claimant contends that the contraventions of which he complains continued up to the date on which his employment terminates.
The Statutory Provisions
Section 27(4) of the Act provides:-
(4) 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.
- (5) 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 after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.
Conclusion
It is clear that the claim was presented five months after the Claimant's employment terminated. If, as alleged, the contraventions complained of were continuing up to the date on which the employment terminated the claim was not presented outside the time limit prescribed by Section 27(4) and his claim is, therefore, admissible. In that regard the instant case is clearly different to the generality of cases in which an extension of time is sought in order to allow a claim to be validly made.
What is in reality in issue in this case is the period which is cognisable for the purpose of investigating the complaint. In so far as the claim in respect to annual leave is concerned the decision of the High Court inMacken v Royal Liver Assurance Ltd. Unreported, High Court, Lavan J, 15th November 2002, is authority for the proposition that any contravention of the Act in respect to the leave year commencing on 1st April 2008 occurred at the date on which the Claimant's employment ended. Consequently no extension is required so as to deal with the totality of his claim in respect of annual leave.
In respect to the other matters the gist of the Claimant's complaint is that he was subjected to a continuing contravention of this rights under the Act up to the time his employment came to an end. It is the Respondent's case that at all times during the currency of his employment the Claimant was afforded his rights under the Act. Consequently, the real issue in contention between the parties is whether or not the conditions under which the Claimant was employed by the Respondent contravened the provisions of the Act, rather than whether he was subjected to a series of individual or stand alone contraventions at different times during his employment.
In that context it seems to the Court that no meaningful distinction can be drawn between the case being made by the Claimant and that being made by the Respondent in respect to the final month of the Claimant's employment and that which can be made in respect of the preceding six months. The cognisable duration over which any contraventions, which may be found to have occurred, continued is a matter to be considered if and when the question of redress arises. The Court is prepared to consider any further submissions which may be made on that point.
In these circumstances the Court believes that reasonable cause exists for allowing the Claimant to rely on alleged breaches of the Act in the 12 month period prior to the date on which he presented his complaint to the Rights Commissioner in order to advance his claim, which is clearly within time.
Accordingly, the Court is prepared to entertain complaints alleging contraventions of the Act in the 12-month period preceding 16th March, 2009.
Signed on behalf of the Labour Court
Kevin Duffy
12th November, 2010.______________________
AH.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.