FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MMM FAMILY BAKERY (REPRESENTED BY PENINSULA BUSINESS SERVICES (IRELAND) LIMITED) - AND - PIOTR SIUDA (REPRESENTED BY DUGGAN AND BARRY SOLICITOR) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appealing against a Rights Commissioner’s Decision R-083436-WT-09/Sr
BACKGROUND:
2. The Employer 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 1st October, 2010. The Court heard the appeal on the 3rd August, 2011. The following is the Court's Determination:
DETERMINATION:
This matter came before the court by way of an appeal by the Respondent against the decision of a Rights Commissioner under the Organisation of Working Time Act 1997. The claimant contended that he was not afforded adequate daily and weekly rest and that he was not paid a premium in respect of Sunday working. The Rights Commissioner found that the claims were well founded and he awarded the claimant compensation in the amount of €9,500.
At the hearing of the appeal the representative of the Respondent raised a preliminary objection to the jurisdiction of the Court on the basis that the claim had been presented to the Rights Commissioner outside the time limit prescribed by s.27(4) of the Act. This matter was not raised at first instance. The Representative of the claimant requested an adjournment to take instructions and to consider this point.
At the resumed hearing the representative of the claimant conceded that the claim was presented outside the time limit but applied to the Court to extend time pursuant to s.27(5) of the Act. The grounds relied upon was that the claimant was concerned at the possibility of retaliatory action by the Respondent if he presented a claim while he was in employment. The claimant ceased his employment with the Respondent on 5th March 2009. His claim was lodged on 18th August 2009. He did not work during the final four weeks of his employment.
Even if the claimants case were to be taken at its height the reason advanced for the delay may explain a delay up to 5th March 2009 (when he ceased working for the Respondent) but it could not explain the actual delay up to 18th August 2009. Consequently the Court cannot find any basis upon which it could grant an extension of time and the application in that behalf is refused.
In these circumstances the decision of the Rights Commissioner is set aside as having been made without jurisdiction and the within appeal is allowed.
Signed on behalf of the Labour Court
Kevin Duffy
31st August, 2011______________________
DNChairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.