FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : SAM DENNIGAN & CO - AND - STANISLAVS GRABOVSKIS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Decision R-093375-Wt-10/MMG
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 21st July, 2011. The Court heard the appeal on the 18th November, 2011. The following is the Court's Determination:
DETERMINATION:
The Complainant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging breaches of Sections 16 and 21 of the Act. The Rights Commissioner upheld the complaint under Section 16 and awarded the sum of €1,000.00. The claim under Section 21 was settled between the parties and forms no part of this appeal. The Employer appealed the Rights Commissioner’s Decision.
The Complainant instituted proceedings under Section 27(2) of the Act on 10thApril 2010 before a Rights Commissioner. He claimed that the Employer had breached the Act when he was required to work in excess of an average of 8 hours per 24 hours averaged over the relevant period.
The Complainant’s working hours were from 8.00pm until 4.00am. Some nights he finished before 4.00am and sometimes later. Occasionally he worked on Saturdays.
At the outset of the hearing Mr. Jamie McAuliffe, Donal T. McAuliffe & Co Solicitors, on behalf of the Respondent Company objected to the case proceeding on the grounds that the Complainant’s claim was submitted out of time outside the six-month time limit prescribed by Section 27(4) of the Act, accordingly the Court had no jurisdiction to hear the complaint.
The Court reserved its decision on the preliminary issue and proceeded to hear the substantive case on the basis that if it held with the Respondent on the preliminary point that would dispose of the case.
Preliminary Issue
The claim was referred before the Rights Commissioner on 10thApril 2010. The Complainant had been out sick from 25thMay 2009 until 15thApril 2010. Mr. McAuliffe submitted that as he had not worked for almost one year prior to making his claim under the Act he was therefore statue-barred from bringing a complaint in respect of any alleged infringement beyond 6 months prior to the date of the complaint.
In response Mr. Richard Grogan, Richard Grogan & Associates, Solicitors, on behalf of the Complainant, submitted that the alleged breach occurred in the period between 1stJanuary 2009 and 25thMay 2009. He submitted that in a case where the Complainant is alleging a breach of Section 16 of the Act, the Court must be satisfied that the Complainant is a “night worker” within the definition provided under Section 16. This requires an examination of the Complainant’s working record for a period of a year. He held that a “year” must be considered as a calendar year and accordingly the claim was within time as it was submitted on 10thApril 2010, which was within a six-month period of the 2009 calendar year.
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 Complainant’s failure to present the complaint within that time limit. No such extension was sought in this case.
Section 16 Nightly working hours.
(1)In this section—
“night time” means the period between midnight and 7 a.m. on the following day;
“night work” means work carried out during night time;
night worker” means an employee—
- (a)who normally works at least 3 hours of his or her daily working time during night time, and
(b)the number of hours worked by whom during night time, in each year, equals or exceeds 50 per cent. of the total number of hours worked by him or her during that year.
- (a)in a case where the work done by the worker in that period includes night work and the worker is a special category night worker, more than 8 hours,
(b)in any other case, more than an average of 8 hours, that is to say an average of 8 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—- (i)2 months, or
(ii) such greater length of time as is specified in a collective agreement that for the time being has effect in relation to that night worker and which stands approved of by the Labour Court undersection 24.
- (i)2 months, or
The Interpretation Act, 2005 defines a “year” as:
- “year”, when used without qualification, means a period of 12 months beginning on the 1st day of January in any year.
Conclusions of the Court on the Preliminary Point
The alleged cause of action occurred in the period between 1stJanuary 2009 and 25thMay 2009. The complaint was submitted on 10thApril 2010. The Court is satisfied that the determination of a worker as a “night worker” or otherwise can be determined by his contractual arrangements. The Complainant was contracted to work a roster between 8.00pm and 4.00am which was a permanent roster with no alternative dayworking roster. Therefore, the Court is satisfied that the Complainant’s contractual hours required him to work at least three hours after midnight 100% of the time. The Court does not accept that it is necessary to retrospectively examine the working record over a calendar year in order to determine the Complainant’s status as a “night worker” within the definition of the Act.
Accordingly, as the complaint was lodged on 10thApril 2010 and there is no dispute between the parties of an alleged contravention of Section 16 taking place in the six months prior to that date, then the Court must find that the complaint is out of time and it has no jurisdiction to hear the complaint.
For the sake of completeness, having examined the working hours actually worked in the two reference periods betweenbetween 19thJanuary and 25thMay 2009the Court finds that the average hours worked per 24 hours did not exceed 8 hours per day.
Accordingly, the Court must hold that this claim is statute-barred and cannot be entertained by the Court.
Accordingly, the claim is dismissed and the appeal is upheld.
Signed on behalf of the Labour Court
Caroline Jenkinson
8th December, 2011______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.