FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : M & J GLEESON & COMPANY (REPRESENTED BY WILLIAM FRY SOLICITORS) - AND - ROBERT MALONEY (REPRESENTED BY COSGRAVE SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appealing against a Rights Commissioner's Decision r-127408-wt-12/RG.
BACKGROUND:
2. This is an appeal by the Worker, Robert Maloney of Rights Commissioner's Decision No: r-127408-wt-12/RG, referred to the Labour Court on the 27th March, 2013 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 18th June, 2013. The following is the Court's Determination:-
DETERMINATION:
This is an appeal by Mr Robert Maloney against the Decision of the Rights Commissioner No: r-127408-wt-12/RG in a claim against M & J Gleeson & Company under the Organisation of Working Time Act, 1997 (the Act). For ease of reference the parties are referred to in this Determination as they were at first instance. Hence Mr Maloney is referred to as the Complainant and M & J Gleeson & Company is referred to as the Respondent.
Background
The Complainant commenced employment with the Respondent as a Transport Manager based in Cherry Orchard Industrial Estatein or around the 23rd May 2002 and his employment ended on the 16th May 2012.
The claim was referred to the Rights Commissioner service of the Labour Relations Commission on 25thOctober 2012. In his complaint to the Rights Commissioner theComplainantalleged that his employer, the Respondent herein, was in breach of Section 12, 14 and 15 covered by Part II of the Act, in that he did not receive his statutory meal breaks; he worked on Sundays without being paid a Sunday premium and he worked excessive hours.
The case was heard before the Rights Commissioner on 23rdJanuary 2013. The Rights Commissioner gave her decision on 13th March 2013 in which she held that the Complainant was not covered by Section 3(2) (c) of the Act, she did not grant an extension of time under the provisions of Section 27 (5) of the Act, found the claims well founded in part and awarded the Complainant compensation of €1,000.00 to be paid within six weeks of the date of her Decision.
Preliminary issues raised by the Respondent
Ms Anne O’Connell, William Fry Solicitors on behalf of the Respondent, contended that Part II of the Act was inapplicable to the Complainant’s employment by virtue of Section 3(2)(c) of the Act which provides that Part II of the Act shall not apply to: -
- (c) a person the duration of whose working time (saving any minimum period of such time that is stipulated by the employer) is determined by himself or herself, whether or not provision for the making of such determination by that person is made by his or her contract of employment.
As Transport Manager for the Respondent, the Complainant had overall responsibility for the efficient and effective management of deliveries to customers. He had responsibility for the dispatch of appropriate levels of stock to the warehouse and was required to organise schedules and routes to ensure deliveries got to customers on time. The Complainant was not provided with a written contract of employment at the commencement of his employment; however, the Respondent stated that his working hours were from 9.00am to 6.00pm Monday to Thursday and 9.00am to 5.00pm on Fridays. The Complainant gave details to the Court of hours worked outside of these hours on a flexible basis in order to meet the demands of the job. He stated that he regularly worked until 7.00pm and up to 8.00pm on Friday nights. This situation often arose as he needed to await the last truck to come in and occasionally he would make some deliveries himself on the way home.
Based on the evidence provided the Court cannot accept that the Complainant was a person the duration of whose working time is determined by him. The times when he was required to perform his work were essentially dictated by fulfilling customer orders which was the main function of the business.
In these circumstances the Court is not satisfied that the Complainant’s employment was of a type envisaged by Section 3(2) (c) of the Act and accordingly he is covered by Part II of the Act.
Application for Extension of Time
Section 27(4) provides, in effect, a time-limit of six months for the bringing of a complaint under the Act starting from the date of the contravention to which the complaint relates. The within complaint was presented to the Rights Commissioner on 25th October 2012. Hence, by application Section 27(4), the Court can only have regard to contraventions found to have occurred between 26thApril 2012 and his last date of employment on 15thMay 2012 for the purpose of awarding redress under the Act.
However Section 27(5) allows the Court to enlarge the time-limit by up to a further twelve months where reasonable cause is shown for the delay in submitting the complaint. The Complainant seeks to rely on alleged contraventions extending over a significantly longer period and applied to the Court for an extension of time in accordance with that provision.
The test for deciding if reasonable cause is shown for the purpose of the Act was considered by the Court inCementationSkanska (Formerly Kvaerner Cementation) v CarrollLabour Court Determination WTC0338 (October 28, 2003 ). Here the Court said: -
- "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 theexpression reasonable course appears in the statute it suggestsan 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 in to 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 facts material to this aspect of the case are not in dispute and can be summarised as follows: -
- •The Complainant was engaged by the Respondent23rd May 2002 and 16th May 2012,when his employment terminated.
- •The Complainant consulted with his solicitors at the end of September 2012 in relation to the terms of his employment and to the circumstances surrounding the termination of his employment.
- •The solicitors wrote to the Respondent taking issue these matters by letter dated 24thOctober 2012. The Complainant brought proceedings before a Rights Commissioner under the Act on 25thOctober 2012.The Complainantsubmitted that his medical condition should be deemed to constitute "reasonable cause" for the late submission of his complaint.
- •He submitted for the Court’s attention copies of medical reports giving details of medical appointments dealing with his complaints of anxiety and stress, which he stated related to his working conditions. The reports refer to six visits to the GP practice from January 2012 to December 2012. Prior to 2012, the Complainant attended the doctor on a number of occasions in 2006 and once in 2008 complaining of anxiety symptoms and possible panic attacks.
The Complainant stated that when he left his employment with the Respondent in May 2012, he found it difficult to function normally and therefore it took until the end of September 2012 to seek any form of assistance, it was at that point he went to see a Solicitor. The Complainant in his evidence to the Court explained that he had no knowledge of the law in terms of working time until after he sought legal advice; accordingly he was not aware of the statutory time limits under the Act. He said that having consulted with his solicitor, his case under the Act was then referred to the Rights Commissioner.
The Court notes that the medical reports indicated that therewere no medical appointments between the period 10thMay 2012 and 16thNovember 2012, the claim was submitted within that period. Furthermore the Court notes that there was only one medical appointment in the time covered by the requested extension of time period, i.e. on 6thJanuary 2012. Therefore the Court is not satisfied that the Complainant’s disability was the cause of the delay in submitting the claim, but the fact that the Complainant was unaware of his statutory right to make such a claim.
On the authority of the Decision of the High Court inMinister for Finance v CPSU and Ors,[2007] 18 E.L.R. 36 (per Laffoy J.) pleading ignorance of the law cannot be accepted as constituting reasonable cause for the Complainant’s failure to lodge his claim in time.
In these circumstances the Court finds that it's jurisdiction is confined to the period of time to the period when his claim is within the time limit, i.e. between 26thApril 2012 and his last date of employment on 15thMay 2012. The Court does not accept that reasonable cause has been shown for extending that time limit.
The Substantive Issues
The Court heard evidence from the Complainant himself. On behalf of the Respondent the Court heard evidence from Mr Jason Kelly, the current Transport Manager and from Mr Paul Mooney, Stock Controller.
Based on the evidence given the Court is satisfied that in the main the Complainant received his meal breaks in accordance with the provisions of Section 12 of the Act. It was accepted that he did not work Sundays during the relevant period covered by the claim.
Contrary to Section 25(1) of the Act the Respondent was unable to provide records of the hours worked by the Complainant and consequently was unable to contradict the evidence tendered by him. Under Section 25(4) of the Act the Respondent carries the onus of proving compliance with the statutory provisions. InJakonis Antanas v Nolan Transport[2011] 22 E.L.R. 311, this Court has held :-
“ Where records in the prescribed form are not produced, and the claimant has satisfied the evidential burden which he or she bears, it will be for the respondent to establish on credible evidence that the relevant provision was complied with in relation to the claimant. The respondent will thus be required to carry the legal burden of proving, on the balance of probabilities, that the Act was not contravened in the manner alleged by the claimant. If the respondent fails to discharge that burden the claimant will succeed.”
In the absence of records to substantiate the Respondent’s contention that the Complainant worked from 9.00am to 6.00pm Monday to Thursday and 9.00am to 5.00pm on Fridays, the Court must draw its own conclusion and accepts the Complainant’s evidence that in order to carry out his work effectively he worked in excess of an average of 48 hours per week, in breach of Section 15 of the Act.
Accordingly the Court finds that the Respondent was in breach of the Act in part and concludes that the Decision and award of the Rights Commissioner was appropriate in the circumstances.
Determination
Therefore, the Decision of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Caroline Jenkinson
15th July, 2013______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.