FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : FANNIN LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MR ZBIGNIEW CHADZYNSKI (REPRESENTED BY POLISH CONSULTANCY ENTERPRISE) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioners Decision r-115914-wt-11/JC
BACKGROUND:
2. A Rights Commissioner hearing took place on the 13th February 2012, and a Decision was issued on the 17th May, 2012. The Employer was incorrectly named in the Rights Commissioners Decision issued on the 17th of May, 2012 and a Correcting Order was issued 19th June, 2012.
The Worker appealed the Decision of the Rights Commissioner to the Labour Court on the 25th June, 2012 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 28th September 2012.
DETERMINATION:
The case comes before the Court by way of an appeal under Section 28 of Organisation of Working Time Act 1997 (“the Act”) alleging breaches of Sections 19 and 21of the Act by Mr Zbigniew Chadzynski (“the Complainant”) against a Decision of the Rights Commissioner under Sections 19 and 21 of the Act. The complaint in respect of Section 21 was withdrawn at the hearing before the Rights Commissioner.
The Complainant complained that he did not receive his appropriate annual leave in respect of the leave year 1stApril 2010 to 31at March 2011. He referred his complaint to the Rights Commissioner on 5thOctober 2011.
The Rights Commissioner held that the complaint was out of time and consequently she had no jurisdiction to hear the case. The Complainant appealed the Decision.
The claim was presented to the Rights Commissioner Service on 5thOctober 2011, five days outside the time limit of six months from the date of the alleged contravention of the Act.
Section 27(4) of the Act allows for complaints to be presented within 6 months of the alleged contravention.
Section 27(5) of the Act provides as follows: -
- “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 of such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause”.
Secondly, as a non-national he does not speak English fluently. English is not his first language and this added to his confusion in relation to when the leave year began for the purposes of the Act and consequently he was not aware of the statutory time limits under the Act. Furthermore, he was not represented by a Solicitor at the time.
Ms Pauline O’Hare, Solicitor IBEC on behalf of the Respondent submitted to the Court that clear rules surround the granting of an extension of time under Section 27(5) of the Act and no such reasonable cause was put forward by the Complainant in this case. She stated that the Complainant’s plea that he was not aware of the statutory time limits under the Act cannot be accepted to excuse the delay as it is a fundamental principle that ignorance of one’s legal rights does not provide a justifiable excuse for a failure to bring a claim in time. Ms O’Hare told the Court that the Complainant had demonstrated that he is clearly aware of statutory time limits under various employment pieces of legislation as he had already taken various claims under the Terms of Employment (Information) Act 1994 and under the Payment of Wages Act 1991 before he lodged his complaint under the Organisation of Working Time Act 1997 to the Rights Commissioner Service. Furthermore, his claim under the Payment of Wages Act 1991 was heard by the Rights Commissioner Service on 31stAugust 2011, i.e. 5 weeks before lodging his claim under the 1997 Act.
Conclusions of the Court
Both sides citedCementation Skanska (Formerly Kvaerner Cementation v CarrollLabour Court Determination DWT0338 (October 31, 2003) where this Court considered the test for deciding if reasonable cause is shown for the purpose of the Act. Here the Court said:-
- “It is the Court’s view that in considering if reasonable cause exists, it is for the Complainant 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 Complainant at the material time. The Complainant’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 Complainant 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 Court is satisfied that on the authority of the decision of the High Court inMinister for Finance v CPSU and Ors,ignorance of one’s legal rights cannot be accepted as constituting reasonable cause for the Complainant’s failure to lodge his claim in time. In all the circumstances of this case the Court is satisfied that the Complainant had the ability to submit claims under various pieces of employment legislation and to submit them in time. The Court is of the view that the Complainant was not at a disadvantage due to his lack of proficiency in English or his lack of familiarity with Irish employment law/procedures. Accordingly, the Court is not satisfied that the Complainant has put forward a reasonable excuse for extending the time for the bringing of the claim.
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
CR______________________
11th October 2012Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.