FTD128

FULL RECOMMENDATION

FTC/11/23

DETERMINATIONNO.FTD128

(r-083830-ft-09)

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003

PARTIES :

AN BORD IASCAIGH MHARA
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)

- AND -

HUGO HEGARTY

DIVISION :

Chairman: Mr Duffy
Employer Member: Ms Doyle
Worker Member: Ms Tanham

SUBJECT:
1. Appeal of Rights Commissioner's Decision No: r-083830-ft-09-EOS

BACKGROUND:

2. This is an appeal by the Employer of Rights Commissioner's Decision No: r-083830-ft-09-EOS referred to the Labour Court in accordance with Section 15(1) of the Protection of Employees (Fixed-Term Work) Act, 2003. A Labour Court hearing took place on 17th February, 2012. The following is the Court's Determination:

DETERMINATION:

This is an appeal by An Bord Iascaigh Mhara against the decision of a Rights Commissioner in a claim by Mr Hugo Hegarty under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act).

In this Determination the parties are referred to as they were at first instance. Hence, An Bord Iascaigh Mhara, which is the appellant in this case, is referred to as the Respondent and Mr Hegarty is referred to as the Claimant.

The Claimant’s was employed by the Respondent on a succession of fixed-term contracts between September 2001 and June 2008 when his final contract expired. At all material times the Claimant was employed as a Workshop Practice Instructor. He submitted a complaint to a Rights Commissioner on 16^thSeptember 2009 in which he claimed that the Respondent had contravened various provisions of the Act in relation to his employment.
Preliminary issue
Both at first instance and in this appeal the Respondent raised a preliminary objection to the substantive issue proceeding on the basis that the complaint was referred to a Rights Commissioner outside the six-month time limit prescribed by s.14(3) of the Act. The Claimant accepts that the complaint was presented outside the time limit but contends that reasonable cause exists for the delay and that the Court should extend the time pursuant to s.14(4) of the Act.

While this issue was extensively argued before the Rights Commissioner it is not expressly addressed in her decision. It is implicit from her decision that the Rights Commissioner granted an extension of time (as she went on to deal with the substantive complaint) but the decision contains no indication of the basis upon which the extension was granted. The Rights Commissioner went on to find that the Claimant became entitled to a contract of indefinite duration by operation of s.9(3) of the Act. She directed that the Claimant be reinstated by the Respondent.

By agreement between the parties the Court decided to deal with the jurisdictions issue by way of a preliminary ruling in the case.
Time Limit
The relevant statutory provisions are contained at subsections (3) and (4) of s.14 of the Act. They provide as follows: -
- (3) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates or the date of termination of the contract of employment concerned, whichever is the earlier.It seems clear that the contraventions to which the Claimant’s complaints relate were continuing up to the termination of his employment. Hence the time limit ran from the date on which his employment came to an end. There is some difference between the parties as to the effective date of termination. The Claimant’s last fixed-term contract expired on 30^thJune 2008. The Respondent contends that this is the effective date on which his employment came to an end.

(4) Notwithstanding subsection (3), 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 (3) (but not later than 12 months after the end of that period) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause. The Court was told that the normal pattern of the Claimant’s employment was that he would finish working for the Respondent in or about the end of June each year and that he would be invited to recommence his employment on the following September. The Court was told that in June 2008 the Claimant ceased working for the Respondent in line with the normal pattern and he expected to be asked back in September 2008. When he heard nothing from the Respondent by October 2008 he asked for his P45. This was then furnished to him and showed a termination date of July 2008.

It seems to the Court that the effective termination date of the Claimant’s employment was either 30^thJune 2008, when his final contract expired, or October 2008 when he was furnished with his P45. For present purposes nothing turns on this point as regardless of whether the employment effectively ended in June 2008 or October 2008, the complaint was out of time when it was presented in September 2009. However, for the sake of completeness, the Court finds that it is more likely than not that the effective date of termination was October 2008. Accordingly the Court must consider if reasonable cause existed for the failure to present the complaint within the time limit.

The test for deciding if reasonable cause is shown for the purpose of the corresponding time –limit provision of the Organisation of Working Time Act 1997 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.

The Court adopts that formulation as equally applicable in considering an application for an extension of time under s14(4) of the Act. Inherent in that test is a requirement to establish that the reason relied upon as constituting reasonable cause was the actual or operative reasons for the delay, in the sense that but for that reason the claim would have been presented in time. In considering if the reason relied upon was the actual or operative cause of the delay it is relevant to consider if the Claimant acted promptly in presenting his or her complaint as soon as that reason ceased to apply.

In this case the Claimant contends that the delay was caused by the uncertainty surrounding his employment statues in that he was never definitively told that he would not be returning to employment in line with the previous pattern. It appears that that by October 2008 the Claimant could have been in no doubt that his employment was not going to resume in line with the previous practice. He then requested and received his P45,

The Claimant wrote to the Respondent in January 2009 and raised the question of a redundancy payment. Further correspondence ensued and the Claimant wrote to the Respondent again on 20^thApril 2009. In this letter he again raised asked for a redundancy payment. There can be no doubt from the tone and content of this correspondence that the Claimant then acknowledged that his employment with the Respondent had come to an end. Finally the Claimant made an application to the Employment Appeals Tribunal in June 2009 under the Redundancy Payments Acts 1967 – 2007 and the Minimum Notice and Terms of Employment Acts 1973-2005. In this application the Claimant gave the termination date of his employment as October 2008.

On the facts of this case the Court has difficulty in seeing how the Claimant can rely on putative uncertainty surrounding his employment status to explain or to excuse the actual delay which arose in presenting his claim. It seems that by January 2009, at the latest, the Claimant had accepted that his employment with the Respondent had come to an end. Otherwise there was no basis upon which he would have sought a redundancy payment. Furthermore, the Claimant pursued claims under the redundancy Payments Acts 1967 -2007 and the Minimum Notice and Terms of Employment Acts 1973 -2005 which were clearly grounded upon the circumstances in which his employment had ended.

In all the circumstances the Court cannot accept that the Claimant established reasons which both explains the delay in issue and affords an excuse for that delay. Accordingly the Court cannot extend the time limit in accordance with s.14(4) of the Act.

Determination
The Respondent’s appeal is allowed. The Rights Commissioner decision is set aside and substituted with finding that neither the Rights Commissioner not this Court has jurisdiction to entertain the Claimant’s claims under the Act.

Signed on behalf of the Labour Court

Kevin Duffy
5th March 2012______________________
AHChairman

NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.