FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MAYO GENERAL HOSPITAL (REPRESENTED BY HSE WEST) - AND - PETER MC HUGH (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appealing against a Rights Commissioner’s Decision R-087476-WT-09/EOS
BACKGROUND:
2. The Worker is employed on night shifts at the Emergency Department Reception of Mayo General Hospital. It is the Union's claim that the Worker was unable to take his breaks or avail of rest periods due to the significant services demands of the post. It is the Employer's position that due to the nature of his work he was exempt from Section 12 of the Organisation of Working Time Act, 1997 (the Act), and that the worker recieved his breaks as provided for under Regulation 4 of the Act. The Worker referred his case to a Rights Commissioner for investigation.
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 11th November, 2010. The Court heard the appeal on the 6th May, 2011 the earliest date suitable to the parties.A preliminary point arose at this hearing.
DETERMINATION:
This is an appeal by Mayo General Hospital against the decision of a Rights Commissioner in a complaint by IMPACT, acting for Mr Peter McHugh, alleging contraventions of the Organisation of Working Time Act 1997. In this Determination Mr McHugh is referred to as the Claimant and Mayo General Hospital is referred to as the Respondent. The Rights Commissioner found that the complaint was well founded and awarded the Claimant compensation in the amount of €5,000.
At all times material to the complaint the Claimant was employed by the Respondent as a Clerical Officer on permanent night duty. He was assigned to the reception area of the accident and emergency department of the Hospital. He worked 12 hour shifts from 8pm to 8am. It is the Claimant’s case that due to the demands on the accident and emergency department, and the Respondent’s failure to provide cover during times at which he was absent from his work station, he was regularly unable to take breaks during his shift.
It is accepted that the Respondent is exempt from the requirement of s.12 of the Act (which deals with rest and intervals at work) by virtue of Regulation 3 of the Organisation of Working Time (General Exemptions) Regulations 1998 (S.I. No 21/1998). It is further accepted that in accordance with Regulation 4 of those Regulations the Claimant was entitled to such compensatory rest that, in all the circumstances, can reasonable be regarded as equivalent to the breaks to which he would otherwise be entitled.
The complaint was received by the Rights Commissioner Service of the Labour Relation Commission on 20th November 2009. Section 27(4) of the Act provides that a Rights Commissioner (and the Court on appeal) cannot entertain a complaint unless it is presented to the Rights Commissioner within six months of the contravention complained of. By application of that provision only such contraventions of the Act as may have occurred on or after 21th May 2009 could be taken into account for the purpose of awarding redress under the Act. The Claimant seeks to rely on alleged contraventions extending over a significantly longer period. He successfully applied to the Rights Commissioner for an extension of time pursuant to s.27(5) of the Act. That subsection provides that the time limit can be extended by a further period not exceeding 12 months where the Rights Commissioner is satisfied that the delay in presenting the complaint was due to reasonable cause. The Respondent contends that the Rights Commissioner erred in accepting that reasonable cause existed for extending the time-limit.
It is clear that the period over which the within complaint is to be considered will determine the extent of oral and other evidence which the parties will be required to tender in addressing the substantive facts in issue. Thus the Court is satisfied that significant savings in time and expense could be made by dealing with the appeal, in so far as it relates to the application to extend the time limit, by way of a preliminary ruling. Accordingly the Court proceeded to deal with the time limit issue as a preliminary matter.
The facts
For the purpose of this aspect of the case the Court has accepted that the factual matrix against which the application to extend the time limit is to be considered is that contended for by the Claimant and set out in the submission made to the Court on his behalf. The salient facts are as follows: -
• The roster on which the Claimant was employed at the material times provided for a 15 minute break before 12 Midnight and a meal break of one hour during each 12 hour shift. It appears that one 30 minute break was unpaid. The gravamen of the Claimant’s complaint is that due to the exigencies of the A&E department in which he worked he rarely had an opportunity to avail of these breaks.
• The Claimant contends that he first raised this matter with management by staff representatives at a routine meeting held on 2nd November 2005. The minutes of that meeting were put in evidence and under the heading“List of items compiled by A&E staff”the following is recorded: -
- “Lunch break at night, as it stands we get one half hour before our colleague goes off at midnight and lucky to get any break after that. Some of us feel that we should be paid for this hour like other night staff i.e. security. Paula clarified the position in relation to the Organisation of Working Time Act, this is not a viable proposal”
• The Claimant contends that he raised the matter subsequently with management on a number of occasions. By letter dated 6th January 2009 the Claimant wrote to his line manager and claimed payment in respect of a half hour break to which he did not have access. By letter dated 8th January the Assistant General Manger replied to this letter rejecting the claim for payment. Further correspondence ensued between the Claimant and the Respondent but the matter was not resolved.
• The Claimant then referred the matter to his trade union and a letter was sent by the union to the Assistant General Manager of the Respondent. A meeting was held between the local union representative and the Assistant General Manager at which substantial agreement appears to have been reached on arrangements to ensure that the Claimant could have access to breaks. The outcome of that meeting was confirmed by the union in a letter to the Respondent dated 8th July 2009. This letter confirmed that two issues were raised at the meeting, namely an arrangement by which the Claimant could take his breaks in the future and a claim for payment for the breaks that the Claimant was unable to take in the past. This letter records the arrangements agreed to deal with the first mentioned issue and concludes by saying that the union would be writing separately regarding the claim for payments.• By a further letter dated 8th July 2009 the union wrote to the Respondent formally requesting payment in respect of the 30 minute unpaid break of which the Claimant could not avail. The Assistant General Manager of the Respondent replied to this letter on 14th July 2009 effectively rejecting the claim for payment on the basis that it would amount to the payment of overtime which was not authorised.
• Further correspondence ensued and by letter dated 8th September the union again referred to the outstanding claim for payments in respect to breaks to which the claimant did not have access. The union stated in this letter that if the matter remained unresolved it would be pursued through the industrial relations machinery of the State.
Grounds relied upon as constituting reasonable cause
The Rights Commissioner found as a fact that the Claimant had raised the subject matter of the within complaint with the management of the Respondent in November 2005. She appeared to accept that the delay in dealing with the matter constituted reasonable cause upon which an extension up to the limit of her jurisdiction was justified.
In his submission on this point the Claimant’s Union representative told the Court that from January 2009 the issue of breaks was being dealt with through normal industrial relations processes and the matter was in fact resolved in December 2009. He said that it was decided not to refer a complaint under the Act while that industrial relations process was in train. It is noted that in the Rights Commissioner ‘s decision the Claimant is recorded as having relied upon a variety of factors including his lack of awareness of his statutory entitlements and that he was entitled to conclude that the Respondent would discharge its duty under the Act.
The law
The test for deciding if reasonable cause is shown for the purpose of s.27(5) of the Act was considered by the Court inCementationSkanska (Formerly Kvaerner Cementation) v CarrollLabour 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 an 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 length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.
This test imposes a relatively low threshold of reasonableness on an applicant for an extension of time. There is, however, some limitation on the range of issues which can be taken into account in considering such an application. Considerable assistance can be derived from two central decisions of the High Court in identifying where those limitations lie. Of particular assistance is the decision of Costello J. (as he then was) inO’Donnell v Dun Laoghaire Corporation[1991] ILRM 301. Here it was pointed out that a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings. The Judge pointed out that the reason relied upon must excuse the delay on an objective standard. InMinister for Finance v Civil and Public Services Union and Others[2007] 18 ELR 36, Laffoy J held that the jurisprudence which generally governs time limits under the Statute of Limitations Act 1957 is applicable in considering limitation periods under other statutes. In that regard the Judge held that in the absence of evidence that a plaintiff is under a disability of a type that prevents the statutory limitation period running the absence of subjective knowledge on the part of a claimant of his or her legal rights does not prevent time running under the Act.
Conclusions of the Court
It is common case that the substantive issue concerning the taking of breaks was resolved with the conclusion of a collective agreement between the Respondent and the Claimant’s trade union although there is a dispute as to when that agreement took full effect. The Respondent contends that the agreement took effect in July 2009 whereas the union contends that it took effect in December 2009. Whatever the factual position in that regard it is clear that the Claimant is now seeking redress for a period before the agreement was concluded during which he contends that he did not have opportunities to take breaks.
It seems to the Court that apart from raising matters relating to future arrangements for the taking of breaks the Claimant was pursuing a claim for payment in lieu of breaks. On each occasion on which that claim was raised the Respondent rejected it and at no stage did the Respondent hold out the prospect that this matter would be resolved through an industrial relations process.
As previously observed the Respondent is exempt from the requirements of s.12 of the Act. The statutory entitlement of the Claimant was to compensatory rest. That requirement is a health and safety imperative and the obligation imposed on an employer cannot be satisfied or offset by the payment of monetary compensation in lieu of breaks. While the Claimant may have felt justifiably aggrieved if he was required to work for a longer period that that for which he was paid, he could not avail of the provisions of the Act to obtain payment for any such excess hours worked.
The Claimant should have known that a delay in presenting a claim under Act would result in it becoming statute barred in whole or in part. If the Claimant was unaware of this likely consequence he cannot rely on his ignorance of the law in seeking to extend the time limit. That was the clear import of the High Court decison inMinister for Finance v Civil and Public Services Union and Others.
Decision of the Court
The Court has applied the test formulated inCementationSkanska (Formerly Kvaerner Cementation) v Carrollto the Claimant’s explanation for the delay in instituting the within complaint. The decision of the High Court inO’Donnell v Dun Laoghaire Corporationindicates that the test is an objective one. Hence, in considering the within application, the Court should ask itself if a reasonably diligent person, having the same state of knowledge of the material facts as the Claimant, would have delayed in pursuing a claim under the Act for the reasons advanced by the Claimant. Having regard to all the circumstances of the case the Court has concluded that it must answer that question in the negative.
Accordingly, the Court cannot accept that the grounds advanced by the Claimant for not having presented his claim before 20th November 2009 either explains the delay or excuses the delay. Accordingly the Court cannot accept that reasonable cause has been shown to justify an extension of the statutory time-limit.
It follows that the cognisable period for the purpose of the within claim is from 21st May 2009 to 20 November 2009.
Signed on behalf of the Labour Court
Kevin Duffy
23rd May, 2011______________________
DNChairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.