FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : DRUMGOAN DEVELOPMENTS LIMITED - AND - JANIS KRUMHOLES (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner's Decision r-062424-wt-07/SR.
BACKGROUND:
2. The Claimant submitted that the Employer was in breach of his rights and entitlements under the Organisation of Working Time Act 1997.The claim was presented to a Rights Commissioner on 10th March 2008. A preliminary issue regarding the six months time limit as laid down in Section 27(4) of the Act resulted in the Rights Commissioner's Decision not to allow an extension of time and declaring the claims "not well founded and are rejected".
The Employee appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 5th March, 2010. The Court heard the appeal on the 3rd November, 2010, the earliest date suitable to the parties.
EMPLOYEE'S ARGUMENTS:
3. 1. We accept the argument that ignorance of the law is no defence, but we contend that in the case of an non-Irish National, who was not advised of his rights, that in such circumstances it is reasonable to allow a time extension.
COMPANY'S ARGUMENTS:
4. 1. The complainant ceased employment with the Company on the 4th August, 2007 and did not commence his claim until 6th March, 2008 outside the requisite six months time limit.
2. The Employer is not aware of any exceptional circumstances or event which prevented the Complainant from referring the complaint to a Rights Commissioner within the appropriate time period.
DETERMINATION:
The claimant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act, 1997 (the Act) alleging breaches of Sections 11,12,15,17 and 20. On investigation of a preliminary point raised the Rights Commissioner held that as the complaint was not presented within the six months time limit laid down under section 27(4) of the Act and found that “reasonable cause” was not shown to justify extending that period in accordance with section 27(5), he therefore held that he had no jurisdiction to entertain the Claimant’s complaint. The Claimant appealed the Decision of the Rights Commissioner.
Mr Grogan, Solicitor on behalf of the Claimant, sought an extension from the Court of the time limit. He submitted that the Employer had not provided the Claimant with a contract of employment and held that as a Latvian national the Claimant was not familiar with Irish employment law or procedures and was not proficient in the English Language.
Time Limits
Section 27(4) of the Act allows for complaints to be presented within 6 months of the alleged contravention and section 27(5) provides for an extension of that limit by a further 12 months where reasonable cause has been shown for the Claimant’s failure to present the complaint within that time limit.
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 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 test for deciding if reasonable cause is shown for the purpose of the Act was considered by the Court in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll Labour 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 and 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 Court was informed that other Workers in the Company had referred similar complaints under the Act to the Rights Commissioner, which were on time and proceeded to conclusion with the assistance of their legal advisor.
In all the circumstances of this case, the Court cannot find that it was due to the Claimant’s lack of proficiency in English or his lack of familiarity with Irish employment law/procedures that was the direct cause for the delay. He made an effort to process his claim, he had the services of a legal professional in employment law and yet he failed to present his case within the prescribed timeframe or within a short period of that timeframe.
Accordingly, the Court is not satisfied that the Claimant has submitted a reasonable explanation to warrant an extenion of 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
26th November 2010______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.