FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MR CHRISTY CONLON T/A CITY TAXIS (REPRESENTED BY SWAINE SOLICITORS) - AND - MS EITHNE DOHERTY (REPRESENTED BY GREG NOLAN SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision r-121786-wt-11.
BACKGROUND:
2. The Employer appealed the Rights Commissioner's Decision to the Labour Court on 10th September, 2012. A Labour Court Hearing took place on 20th March, 2013. The following is the Labour Court's Determination:
DETERMINATION:
This is an appeal by Christy Conlon t/a City Taxis against the Decision of a Rights Commissioner in a claim brought by Ms Eithne Doherty under the Organisation of Working Time Act, 1997(hereinafter referred to as “the 1997 Act”) alleging a breach of Section 21. The Rights Commissioner upheld the complaint and awarded the sum of €4000.00.The Employer appealed the Decision.
In this Determination the parties are referred to as they were at first instance. Hence Christy Conlon t/a City Taxis will be referred to as “the Respondent” and Ms Eithne Doherty will be referred to as “the Complainant”.
The Complainant submitted a claim under the Act to the Rights Commissioner on 10thApril 2012.
Background
The Complainant was employed by the Respondent as a Dispatcher from 11thOctober 2007 until 14thDecember 2011, working 20 hours per week. She claimed that she had not been paid in respect of public holiday entitlements for the duration of her employment. She was paid an average of €220 per week (€194.76 net).
Preliminary Objection – Estoppel
Mr Shane Lynch Solicitor, Swaine Solicitors, on behalf of the Respondent, appealed the Rights Commissioner’s Decision stating that the Respondent had not being present at the Rights Commissioner’s hearing through no fault of his own. Mr Lynch objected to a hearing of the Complainant’s case on the basis that the issue had already being dealt with under the Payment of Wages Act, 1991 (hereinafter referred to as “the 1991 Act”) and submitted that the Rights Commissioner should not have heard the claim under the 1997 Act. It was on that basis that the Respondent submitted his appeal.
Mr Lynch told the Court that the Complainant had referred a claim under the 1991 Act to a Rights Commissioner on 16thJanuary 2012 claiming that“she was not paid her statutory entitlements in respect of Public Holidays for the total period of her employment”.The Rights Commissioner found in her favour and awarded the sum of €194.76 net in compensation. This Decision was published on 14thMarch 2012.
Furthermore, she submitted a claim under the 1997 Act on 10thApril 2012 claiming that"she was not paid for public holidays for the total period of her employment".The Rights Commissioner found in her favour and awarded the sum of €4000.00 in compensation. This Decision was published on 1stAugust 2012.
Therefore, Mr Lynch submitted that the matter wasres judicata.
Mr Greg Nolan Solicitor, Greg Nolan Solicitors, on behalf of the Complainant accepted that the Complainantsubmitted two claims to the Rights Commissioners of the Labour Relations Commission. He said that in respect of the claim under the 1991 Act,it appears to be the case that the Rights Commissioner limited the operative period of the complaint from the 17thJuly 2011 onwards and duly made a finding in the Complainant's favour in the amount of €194.76 for non-payment of statutory
entitlements in respect of public holidays during that period.
The second claim under the 1997 Act was received by the Labour Relations Commission within six months of the date of the Complainant leaving the Respondent's employment.As part of that claim she sought compensation for breach of her public holiday pay entitlements for the total period of her employment. The Rights Commissioner specifically stated that he was not prepared to extend the operative period from 11thOctober 2007 to 14thDecember 2011 in line with the provisions of section 27(5) of the Act.
Therefore, Mr Nolan contended that the first claim, under the 1991 Act was in respect of a period from 17thJuly 2011 onward, while the second, under the 1997 Act, was in respect of the 12 month period from the date of the submission of the claim and
therefore covered a more extensive period of time and offence. He said that this clearly makes a distinction between the two claims and they are not the same set of offences.
Mr Nolan submitted that under the 1997 Act claim the Rights Commissioner noted that the Complainant was not paidfor public holidays for the total period of her employment and that the Complainant made the point that she"this amountstoreasonable cause within the meaning of section27(5)of the Act".Therefore, Mr Nolan submitted thatthe Rights Commissioner was dealing with the litany of repeat offences not otherwise covered by the firstclaim but allowable under the time period covered in the second claim.Upon hearing all ofthe facts laid out before him he duly made a decision awarding €4,000in compensation to her for the breach of the 1997 Act. Mr Nolan submitted to the Court that this was in accordance with the provision of Section 27(3) of the 1997 Act, which empowers the Rights Commissioner to award compensation"of such amount (if any)asis just and equitable having regardtoall of the circumstances, but not exceeding two years remuneration in respect of an employee's employment....".
Conclusion of the Court
The doctrine ofres judicataoperates to prevent a party to judicial proceeding from litigating the same issue twice as between the same parties. “Issue Estoppel” arises where an issue of fact or law has been disposed of between the parties in earlier proceedings. Its essential features were summarised by Lord Guest inCarl Zeiss Steiftung v Rayner & Keller Limited(2) (1967) AC 853 at 935A:-
- The requirements of issue estoppel still remain (i) that the same question has been decided, (ii) that the judicial decision which is said to create the estoppel was final; and (iii) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
Having examined the submissions of both parties the Court is satisfied that the complaint before the Rights Commissioner on both occasions related to a claim by the Complainant for entitlement to be paid her statutory entitlements in respect of public holidays in respect of the total period of her employment. In neither case did the Rights Commissioner exercise his discretion to extent the six-month time limit under the respective Acts. Therefore, the period covered by the Rights Commissioner’s Decision under the 1991 Act covered the period from 17thJune 2011 until 14thDecember 2011, a period when there were two public holidays,viz.Monday 1stAugust and Monday 31stOctober 2011. The period covered by the Rights Commissioner’s Decision under the 1997 Act covered the period from 11thOctober 2011 until 14thDecember 2011, a period when one public holiday fell,viz.Monday 31stOctober 2011.
In line withCarl Zeiss Steiftungthe Court is clear that (i) the same question had been decided in both case before the Rights Commissioner, (ii) the Rights Commissioner’s Decision under the first set of proceedings was not appealed by either party and (iii) the parties to the second set of proceeding are the same parties to the first case in which the estoppel issue was raised.
On that basis the Court is satisfied that the issue which arise in this case was finally dealt with in the first proceedings, therefore it cannot be reopened and the parties are bound by the Decision on that point in the earlier proceedings.
Determination
The Complainant is estopped from pursuing the issue from which the within claim is grounded. Therefore, the Respondent is entitled to succeed in the appeal and the Rights Commissioner’s Decision is set aside.
Signed on behalf of the Labour Court
Caroline Jenkinson
6th June, 2013______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.