FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : WESTERN REAL ESTATE AGENTS LIMITED T/A SHERRY FITZGERALD LEWIS BEIRNE (REPRESENTED BY MARK MC PARLAND SOLICITORS) - AND - MS EDEL SMYTH (REPRESENTED BY OSBORNES SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal Of Rights Commissioners Decision r-111731-wt-11/SR
BACKGROUND:
2. A Rights Commissioner hearing took place on the 21st October 2011, and a Decision was issued on the 5th January 2012.
The Employer appealed the Decision of the Rights Commissioner to the Labour Court on the 15th February 2012, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 16th May 2012.
DETERMINATION:
The Complainant brought a complaint before a Rights Commissioner pursuant to Section 27ofthe Organisation of Working Time Act 1997 (the Act) alleging breaches of Sections 14 and 19 of the Act. The Rights Commissioner found that the complaints were not well founded. During the hearing before the Rights Commissioner a further complaint was made concerning an alleged breach of Section 12 of the Act. The Rights Commissioner requested further submissions from both parties on this claim. On the basis of the submissions made the Rights Commissioner found in favour of the Section 12 complaint and awarded the sum of €1,600.00 in compensation.The Employer appealed the Decision of the Rights Commissioner.
In this Determination the parties are referred to as they were at first instance. Hence, Western Real Estate Agents Limited t/a Sherry Fitzgerald Lewis Beirne, which is the Appellant in this case, is referred to as “the Respondent” and Ms Edel Smyth is referred to as “the Complainant”.
The Complainant was employed with the Respondent from 11thSeptember 2006 until 23rdFebruary 2011. She completed a complaint form under the Act in respect of complaints alleging breaches of Section 14 and 19 of the Act on 19thFebruary 2011, however this form was not received by the Rights Commissioner until 11thJuly 2011.
In its appeal of the Rights Commissioner’s Decision the Respondent raised a preliminary point concerning the veracity of the complaint made under Section 12 contending that at no time was such a complaint ever made.
The Law Applicable
In order for a complaint alleging a contravention of the Act to be maintained, Section 27 of the Act allows a period of six-months (extendable in certain circumstances to eighteen-months) for a complaint to be made to a Rights Commissioner.
Section 27 provides in relevant part as follows:
- (4) 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.
(5) Notwithstanding subsection (4), 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 (4) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.
DeterminationThe Court overturns the Rights Commissioner’s Decision and upholds the Respondent’s appeal.
Signed on behalf of the Labour Court
Caroline Jenkinson
21st May, 2012______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.