FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : BUS EIREANN - AND - MARTIN CARR DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal against a Rights Commissioner’s Decision r-125600-wt-12.
BACKGROUND:
2. A Rights Commissioner hearing took place on the 2nd November 2012, and a Decision was issued on the 8th February 2013. The Worker appealed the Decision of the Rights Commissioner to the Labour Court on the 11th February 2013, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 24th May 2013.
DETERMINATION:
Background
This is an appeal under Section 28(1) of the Organisation of Working Time Act 1997 ("the Act"), by Martin Carr ("the Complainant") against Rights Commissioner Decision no r-125600-wt-11 issued on 8th February 2013.The Rights Commissioner decided
- "In coming to a decision in this matter I note that the complaint was received on the 27thAugust 2012. I have given careful consideration to the submissions of the parties and aminclined towards the submission of the respondent. The circumstances described here do notlead me to believe that "reasonable cause"as envisaged within the provisions of s27(5) exist and I find that the complaint is out of time and therefore that I lack jurisdiction to hear it."
The Complainant lodged an appealwith this Court under Section 28(1) of the Act on 11thFebruary 2013. The case came on for hearing on 24th May 2013. Both parties attended the hearing and made submissions to the Court.
Facts
The Complainant worked for Bus Eireann ("the Respondent Company" or "the Company") in a management role from 1969 until heretired on 31stMay 2011in part settlement of a personal injuries action he was pursuing againstthe Company.At the
time of his retirement he was paid €15.031.97 cessor pay in respect of 38 days' annual leave and 4 Public Holidays outstanding at that time.On the 27thAugust 2012 the Complainant submitted a complaint to the Rights Commissioner under Section 27 of the Act.In the complaint he stated that he had an entitlement to payment in respect of outstanding accrued holidays over the period of his illness commencing in 2006 for which he had not received cessor pay on the termination of his employment.He sought to bring a complaint under the Act for payment of outstanding holiday entitlement and compensation for theinfringement of his entitlements under the Act. The Company denied that he had any outstanding entitlement and entered a defence against the complaint.
Preliminary issue
Complainant's Position
The Complainant seeks an extension of time under Section 27(5) of the Act.He submits that he was heavily medicated when he reached an agreement to terminate his employment with the Company in settlement of the personal injuries claim he was pursuing.He submits that as a consequence of the medication he was in not fit to properly assess his entitlements under the Act.However when he returned to full health in August 2012 he noticed the error and immediately pursued the matter under the Act. He submits that the terms of settlement of the personal injuries claim made no reference to holiday pay and cannot act as a bar to taking a complaint under the Act.
Respondent's Position
The Respondent states that the Complainant agreed settlement terms for his personal injuries action that were in full and final settlement of all claims against the Company. He returned to work on 18th May 2011 andretired on 31st May 2011 on agreed terms.The Company wrote to the Complainant's solicitors on 27thMay 2011 setting out details of the breakdown of the Complainants termination payments. This breakdown included an amount of €15,031.97 in respect of outstanding annual leave and public holidays. It submits that the Complainant was therefore on notice of the precise calculation of his accrued holiday entitlement at the time his employment terminated.He had ample opportunity to consider the matter with his legal advisors had he wished to challenge the calculation submitted by the Company. He did not do so but rather, through his legal advisors, accepted the termination payment on the terms agreed. It submits that it is not open to him to now seek to revisit that agreement on the grounds that he was suffering an illness at the time. He was legally advised on the terms of the settlement and in relation to all related matters. Accordingly, he was adequately and properly represented and cannot seek to reopen matters at this stage.
Findings of the Court
The Law
Section 27 of the Act states
- (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.
The Labour Court has set out the test to be applied when considering an application to extend time in the following termsin Cementation Skanska v CarrollDWT38/2003.
- "[I] 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 agreeabletoreason and not be irrationalorabsurd.In the context in which the expression reasonable cause appears in 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.
- "[I] 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 agreeabletoreason and not be irrationalorabsurd.In the context in which the expression reasonable cause appears in 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.
In the first instance the Court must decide if the Complainant's failure to present the complaint within the six-month time limit was due to the reasonable cause relied upon.
In this case the reasonable cause relied on by the Complainant is that he was taking heavy medication at the time that affected his capacity to understand what was happening. The Complainant introduced two reports from Consultant Psychiatrists in support of this position. The Court has reservations as to the evidential value of the reports submitted in deciding this case. However, that aside, the Court was advised that the Complainant was at all stages legally represented in his dealings with the Company.The terms of settlement of the personal action he was pursuing were agreed through his legal advisors. The letter of the 27th May setting out the basis upon which the complainant's outstanding holiday pay was calculated was sent to and agreed by his solicitors. Accordingly the Court concludes that the Complainant fully consented to the terms of the severance agreement reached with his employer.It sees no grounds on which it can isolate one portion of that agreement and conclude that he was fully aware of and consented to all other aspects of if but not the provision relating to outstanding holiday pay. On that basis the Court finds that the grounds relied on for the extension of time do not amount to reasonable cause within the meaning of Section 27(5) of the Act.
Determination
The Court determines that the Complaint was lodged outside the statutory timeframe set out in Section 27(4) of the Act and no reasonable cause was presented to the Court such as would justify an extension of time under Section 27(5) of the Act.The Decision of the Rights Commissioner is upheld.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
CR______________________
1st July, 2013.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.