DWT10168

FULL RECOMMENDATION

WTC/09/196

DETERMINATIONNO.DWT10168

(r-073465-wt-08)

SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997

PARTIES :

HSE AMBULANCE SERVICE
(REPRESENTED BY HSE)

- AND -

PATRICK BRANN
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Mr O'Neill

SUBJECT:
1. Appealing Against A Rights Commissioner’S Decision R-073465-Wt-08

BACKGROUND:

2. This case concerns an appeal by the Employer of Rights Commissioner's DecisionR-073465-Wt-08.The worker was employed by the Health Service Executive from 23rd November, 2006 until 11th September, 2008.The worker referred a case of alleged infringements of the Organisation of Working Time Act, 1997, to a Rights Commissioner for investigation. On 23rd July 2009, the Rights Commissioner issued the following Decision:

- "The record submitted to me does not support the complaint as made and therefore I find that the complaint is not well founded."
The Union appealed this Decision to the Labour Court on 1st September, 2009, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 12th October, 2010.

DETERMINATION:

The Complainant presented a complaint before a Rights Commissioner on 19th December 2008 pursuant to Section 27 of the Organisation of Working Time Act 1997 (the Act) claiming redress in respect of alleged breaches of Sections 11, 12 and 15 of the Act.
The Rights Commissioner held that the records did not support the complaints and therefore found that they were not well founded.The worker appealed the Decision of the Rights Commissioner.

The Complainant was employed by the Respondent as an Emergency Medical Technician from 23rd November 2006 until 11th September 2008.

The employer held that there was no breach of the Act within the statutory timeframe for the claim under Section 27 of the Act as the Complainant’s last working day was on 28th May 2008. It denied the allegations made and held that it was not in breach of the Act. The employer told the Court that the Complainant’s rostering arrangements complied with the provisions governing daily and weekly rest periods under the Code of Practice on Compensatory Rest Periods.

Section 27 of the Act provides in relevant part as follows:

(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.

The time limit prescribed by Section 27 (4) runs from the date of contravention of the Act to which the complaint relates. No application for an extension of time was made to the Rights Commissioner. Consequently, any claims of alleged breaches of the Act prior to 20th June 2008 are statute-barred and, to that extent, are not cognisable by the Court.

Having examined the matter, the Court is satisfied that the Complainant claim is statute-barred.

Therefore the Court upholds the Rights Commissioner’s Decision and finds that the complaint is not well-founded. The worker’s appeal fails.

The Court so determines.

Signed on behalf of the Labour Court

Caroline Jenkinson
19th November, 2010______________________
DNDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.