FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : WESTSTAR HOTEL LTD T/A THE WESTGROVE HOTEL & CONFERENCE CENTRE - AND - RASA MELNICIUKIENE DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision r-124903-wt-11/JT.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 14th December, 2012. A Labour Court Hearing took place on 3rd April, 2013. The following is the Labour Court's Determination:
DETERMINATION:
This is an appeal by Rasa Melniciukiene against the decision of a Rights Commissioner in her claim under the Organisation of Working Time Act 1997 (the Act against her employer Westgrove Hotel (the Respondent). The claim relates to the Respondent’s failure to pay the Claimant in respect of Public Holidays falling in the period up to August 2012.
The Respondent accepts that the Claimant was not paid in respect of public holidays in accordance with the Act during the relevant period.
The claim was presented to a Rights Commissioner on 24thJuly 2012. Under s. 27(4) of the Act a claim for redress must be presented within a period of six-months from the date of the contravention of the Act to which the complaint relates unless time is extended for reasonable cause shown in accordance with s.27(5). The maximum period in respect of which an extension may be granted is 12 months from the expiry of the period specified in s. 27(4), that is to say, a total of 18 months. It is settled that where a complaint relates to a failure to provide a benefit in respect of a Public Holiday, time starts to run from the date of each Public Holiday in issue.
The Claimant applied for an extension of time in accordance with s.27(5) of the Act. Her representative told the Court that the Claimant has asked her employer on a number of occasions why she was not being paid for Public Holidays and had been assured that she was receiving her statutory entitlements.
The representative of the Respondent told the Court that it believed that the Claimant was receiving what was due to her but it now accepts that that was incorrect. The Respondent also accepted that the Claimant did raise the matter and had received the assurances in the terms claimed.
In a line of previous Determinations, starting with that inCementation Skanska v Carroll(Determination DWT0338) (28thOctober 2003), this Court held that the test for extending time for reasonable cause shown should be analogues to that enunciated by Costello J (as he then was) for extending time pursuant to O.84 r.21 of the Rules of the Superior Courts 1986 inO’Donnell v Dun Laoughaire Corporation[1991] I.L.R.M 301. InCementationthe Court formulated the test as follows: -
- It is the Court's view that 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 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 claimant at the material time. The claimant’s failure to present his or her 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 context in which the expression reasonable appears in the statute it imports an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time.
In this case the Claimant is a foreign national and is unfamiliar with Irish employment law and practice. She had raised the matter of her entitlement to a benefit in respect of Public Holidays with her employer on a number of occasions and had been assured that her rights were being respected. The Claimant accepted these assurances at the time.
In all the circumstances the Court accepts that the manner in which the Claimant was misled by her employer both explains the delay and provides a justifiable excuse for the delay. The Court is further satisfied that had she not been misled by the Respondent she would have presented her claim earlier. Against that background the Court considers it appropriate to extend time in accordance with s. 27(5) of the Act and it does so to 25thFebruary 2011.
In that cognisable period there were 14 Public Holiday. The Court directs the Respondent to pay the Claimant a day’s pay in respect of each of these Public Holidays calculated in accordance with theOrganisation of Working Time (Determination of Pay for Holidays) Regulations 1997 (S.I. No. 475 of 1997).Regulation 5(1)(a) of those Regulations provides, in the case of an employee paid by reference to a fixed rate, that the applicable rate is the sum that is equal to the amount paid to the employee in respect of the normal daily hours last worked by him or her before that public holiday.
The Court further directs that the Respondent pay the Claimant an additional compensation for the infraction of her statutory entitlements in the amount of €1,000.
The Court so determines.
Signed on behalf of the Labour Court
Kevin Duffy
22nd May, 2013______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.