PTD125

FULL RECOMMENDATION

PTW/11/10

DETERMINATIONNO.PTD125

(r-100267-pt-10)

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001

PARTIES :

ESB

- AND -

THOMAS HENNESSY
(REPRESENTED BY BREEN GEARY MCCARTHY & SHEE SOLICITORS)

DIVISION :

Chairman: Mr Duffy
Employer Member: Ms Cryan
Worker Member: Ms Ni Mhurchu

SUBJECT:
1. Appealing against a Rights Commissioner's Decision r-100267-pt-10

BACKGROUND:

2. The three Claimants worked on a seasonal part-time basis for up to a couple of months each year or full time under a fixed term contract averaging five weeks per year from 1988 on continuous service to date. The initial complaint has been taken pursuant to the provisions of the Protection of Employee's (Part Time Work) Act 2001 against the ESB on the basis that it breached the provisions of the Legislation through its failure to grant each of them pro-rata access to the Employee Share Ownership Plan (ESOP). The Claimants therefore are entitled to receive benefits under the ESOP which was denied to them. The case wasreferred to a Rights Commissioner for investigation and recommendation. On the 24th June 2011, the Rights Commissioner issued his Decision as follows:-

"The complaint is clearly out of time and therefore I lack jurisdiction"

The Workers appealed the Rights Commissioner's Decision to the Labour Court on 13th July, 2011. A Labour Court hearing took place on 14th March 2012

DETERMINATION:

This case came before the Court by way of an appeal by William Tracey, Thomas Hennessy and Patrick Carney (hereafter the Claimants) against the decision of a Rights Commissioner in their claims against the ESB (hereafter the Respondent) under the Protection of Employees (Part-Time Work) Act 2001(the Act). The Claimants worked for the Respondent for up to ten weeks per year. On that account they claim that they are part-time employees within the meaning of the Act. The substance of their claim is that they were excluded from participation in an Employee Share Option Scheme (ESOP) because of their part-time status.

The matter was heard by a Rights Commissioner who held that the claims had been presented outside the time limit prescribed by Section 16 of the Act, in consequence of which he lacked jurisdiction to entertain the claim. The Claimants appealed to this Court.
The Appeal
By agreement with the parties the Court decided to deal with the question of whether or not the claims were presented outside the time limit by was of a preliminary Determination.
The Facts
The facts relevant to this aspect of the case are as follows: -
Pursuant to a collective agreement with trade unions representing its staff the Respondent introduced the ESOP on 14^thDecember 2001. It was envisaged that the implementation period of the scheme would be three years. Eligible employees were required to apply for participation in the scheme by 25^thFebruary 2002, or in relation the final allocation of shares, by 30^thApril 2003. The scheme was closed with effect from the aforementioned date in 2002 and the final allocation of shares was made on 28^thMay 2003. The Claimants did not apply to participate in the scheme by either of those dates.

A case was taken by another part-time employee of the Respondent under the Act in relation to his exclusion from the ESOP and in Determination No.PTD081,ESB and Christopher McDonald, this Court upheld his claim. That Determination was issued on 6^thMarch 2008. The Claimants instructed solicitors in this matter who wrote to the Respondent by letter dated 29^thSeptember 2010 seeking that their clients be included in the ESOP. Following a number of reminders the Respondent replied by letter dated 5^thNovember 2010 rejecting the Claimants’ claims. The within claims were presented to the Rights Commissioner Service of the Labour Relations Commission on 6^thDecember 2010.

Section 16(3) of the Act provides that a Rights Commissioner shall not entertain a complaint under the Act 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 complaints relates or the date of termination of the contract of employment, whichever is the earlier.
Position of the Parties
On the fact recited above the Respondent contends that the claims were presented outside the statutory time limit. It is the Respondent case that the time limit runs from 25^thFebruary 2002, when the scheme finally closed to new participants. The Claimants contend that the contravention in issue occurred on the date on which the Respondent refused to admit the Claimants, namely 5^thNovember 2010.
Determination of the Court

This case turns on the question of when the contravention to which these complaints relate occurred.

In considering this question the Court is guided by the Decision of Ms Justice Leffoy inMinister for Finance v Civil and Public Services Union[2006] IEHC 145. This case involved the application of a similar time limit for the bringing of claims under the Employment Equality Act 1977. Having reviewed the facts of the case and the applicable law, Leffoy J said the following: -
- In my view, it must be assumed that the Oireachtas intended that the jurisprudence which generally governs time limits would be applicable to s. 19(5). Although not directly in point here, the established jurisprudence in this jurisdiction is that knowledge or discoverability of a material fact is not the trigger which sets a statutory limitation period running, unless the legislature expressly so provides. This is clearly illustrated by the decision of the Supreme Court in a medical negligence case, Hegarty v O'Loughran 1 I.R. 148, which is referred to in the judgment of Morris J. in McDonald v McBane. Morris J. quoted the following passage from the judgment of Finlay C.J. at p. 157:
  - “I would, therefore, conclude that the proper construction of this sub-section is that contended for on behalf of the defendants and that is that the time limit commenced to run at the time when provable personal injury, capable of attracting compensation, occurred to the plaintiff which was the completion of the tort alleged to be committed against her.”
- Subsequent to that decision, the Oireachtas enacted the Statute of Limitations (Amendment) Act, 1991 and effectively reversed the decision by the enactment of Section 3(1) which provides:
- - “An action … claiming damages in respect of personal injury to a person caused by negligence, nuisance or breach of duty … shall not be brought after the expiration of three years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured.”
  That provision was amended by Section 7(2) of the Civil Liability and Courts Act, 2004. As was submitted on behalf of the appellant, the foregoing is an example of the Supreme Court setting its face against a subjective interpretation of limitation periods and the Oireachtas making a positive intervention to allow that in relation to specific causes of action in limited circumstances.
  Further, under the established jurisprudence in this jurisdiction lack of knowledge or awareness on the part of a 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. That is illustrated by the decision of this Court in the Murphy case and the decision of the Supreme Court in the McDonnell case.

As is clear from that Judgment the law in relation to statutory time limits of the type in issue in the instant case is to be determined by reference to the jurisprudence of the Superior Courts on limitation periods for the bringing of actions in common law. It is also clear from the decision of the Supreme Court inHegarty v O'Loughran1 I.R. 148 that a limitation period runs from the time that the plaintiff’s cause of action was complete. The Decision inMinister for Finance v Civil and Public Services Unionindicates that a similar interpretation must be ascribed to the expression ‘the occurrence of the event to which to which the complaint relates’ as it appears in Section 16(3) of the Act.

A complete cause of action under the Act accrued to the Claimants when the ESOP was finally closed without their inclusion therein. This occurred on 25^thFebruary 2002 or, at the latest on the 28^thMay 2003, and it was from then that the six-month time limit started to run. The complaints presented on 6^thDecember 2010 were clearly outside that time limit. Accordingly the Court has no jurisdiction to entertain the within claims.

Accordingly, the Decision of the Rights Commissioner is affirmed and the appeals are disallowed.

Signed on behalf of the Labour Court

Kevin Duffy
2nd May, 2012______________________
JFChairman

NOTE

Enquiries concerning this Determination should be addressed to Colm O'Flaherty, Court Secretary.