FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : AVERY WEIGH-TRONIX (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MR TOM KINSLEY (REPRESENTED BY TECHNICAL, ENGINEERING AND ELECTRICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision r-106102-wt-11/GC.
BACKGROUND:
2. A Rights Commissioner hearing took place on the 28th July 2011, and a Decision was issued on the 2nd November 2011.
The Worker appealed the Decision of the Rights Commissioner to the Labour Court on the 7th December 2011, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 15th March 2012.
DETERMINATION:
The Complainant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging a breach of Section 23 of the Act. The Rights Commissioner found that the complaint had not been referred within the time limit provided for under Section 27(4) of the Act and, having considered an application under Section 27(5) to extend the time-limit, the Rights Commissioner declined the application. The Complainant appealed the Rights Commissioner’s Decision.
The Respondent submitted that the Rights Commissioner was correct not to entertain the Complainant’s complaint as it was submitted outside the time limit and requested the Court to deal with this matter as a preliminary issue before deciding whether or not to hear the substantive claim.
The Court decided to deal with the question of whether or not the claim was presented outside the time limit by way of a preliminary Determination.
The complaint was lodged with the Rights Commissioner on 22ndFebruary 2011. The Complainant claimed that the employer had breached the Act when he was not provided with compensation for outstanding annual leave and public holidays on the cessation of his employment. The Complainant had been out on sick leave from 26thSeptember 2007 until he availed of early retirement. He sought outstanding leave entitlements in respect of 2007, 2008, 2009 and part of 2010. There was some dispute between the parties on the termination date of employment. The Respondent stated that the Complainant’s employment terminated on 26thAugust 2009, when he retired from the Company under the provisions of its Early Retirement Scheme, whereas the Complainant submitted that he retired in March 2010.
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 time limit by a further 12 months where reasonable cause has been shown for the Complainant’s failure to present the complaint within the initial six-month time limit.
The Union, on behalf of the Complainant, informed the Court that the Complainant suffered a stroke on 26thSeptember 2007 and was out of work from then until his retirement. The Complainant engaged with the Respondent on the possibility of returning to work and made enquiries relating to his pension options in 2009 which continued until March 2010 when his early retirement from the Company was finalised. The Union submitted that the Complainant’s focus on recovery from his illness took some time and contributed to the delay in referring the matter to the Rights Commissioner.
The Respondent told the Court that the Complainant was absent from work since 2007 and from June 2009 he was in regular contact as he sought to return to work on light duties if available, however, the Respondent could not accommodate him and instead processed his application for early retirement. While it took some time for the Trustees to finalise the matter, by March 2010 the matter was completed and he was paid a retrospective pension payment backdated to 26thAugust 2009.
The law
The test for deciding if reasonable cause is shown for the purpose of Section 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.”
The Court must investigate the reasons which explain the delay and examine any excuse for the delay. InMinister for Finance v Civil and Public Services Union and Others[2007] 18 ELR 36, Laffoy J held that
- “…under the established jurisprudence in this jurisdiction lack of knowledge or awareness on the part of the claimant, or the absence of a legal precedent which indicates, that as a matter of law, a claim will have a successful outcome does not prevent a statutory limitation period from starting to run.”
The Court is satisfied that the issue of the disputed retirement date is of no great significance as both dates come within the 18-month period applicable in the event that the application for an extended time limit is granted by the Court.
The Court has examined the contents of a letter from the Respondent in response to an email which the Complainant wrote to the Payroll Manager on 26thJanuary 2011 concerning the amount of holiday pay he should have received when he left the Company in August 2009. This letter made reference to a CJEU case of 2009 concerning accrual and payment for annual leave for employees who have been on sick leave. However, it also informed him that, as he was on continuous sick leave in 2009 and did not work any hours, in accordance with the Organisation of Working Time Act 1997 he did not accrue any paid annual leave entitlement. The letter finished by inviting him to check theCitizens InformationServiceand theIrish Statute Bookwebsites for further information.
By letter dated 18thFebruary 2011 the Complainant wrote to the Rights Commissioner’s Service stating that he did not know his legal rights nor any possible implications of the CJEU rulings prior to making his enquiries, however, having taken the advice contained in the Respondent’s letter he had checked the situation with theCitizens Information Serviceand withNERA. He then proceeded to refer his complaint to the Rights Commissioner’s Service under the Act.
It is clear that the Complainant was not aware of his legal right to pursue a claim for annual leave and public holidays for the period from September 2007 until March 2010 prior to February 2011, by which time he was out of time to pursue his claim. Ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for a failure to bring a claim in time. This was the clear import of the High Court decision inMinister for Finance v Civil and Public Services Union and Others.
Determination of the Court
Accordingly, the Court cannot accept that the reasons put forward by the Complainant constitute reasonable cause for his failure to lodge his claim in time.Therefore, the Court finds that reasonable cause has not been shown to justify an extension of the statutory time limit.
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
11th April, 2012______________________
JMCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Colm O'Flaherty, Court Secretary.