FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : PADDY KINSELLA TRADING AS KINSELLA'S OF ROCKLANDS (REPRESENTED BY EMPLOYMENT LAW MATTERS, CONSULTANTS) - AND - CLAIRE HAYES (REPRESENTED BY PADGE RECK, M.C.C.) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal against Rights Commissioner's Decision r-122289-wt-12/DI.
BACKGROUND:
2. The Employer appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 30th April, 2013. The Court heard the appeal on the 18th September, 2013.
DETERMINATION:
The Complainant brought a complaint before a Rights Commissioner pursuant to the Organisation of Working Time Act 1997 (the Act) alleging breaches of Sections 11, 12 and 20 of the Act. The Rights Commissioner upheld the complaints under Section 12 and 20 and awarded a total sum of €1,900. He found against the Complainant’s claim alleging a breach of Section 11 of the Act. The Employer appealed the Decision under Sections 12 and 20 of the Act. There was no cross-appeal.
For ease of reference the parties are referred to as they were at first instance. Hence Ms Claire Hayesis referred to as “the Complainant” and Mr Paddy Kinsella trading as Kinsella’s of Rocklandsis referred to as “the Respondent”.
The Complainant submitted a claim under the Act to the Rights Commissioner on 28thApril 2012.
Background
The Complainant was employed by the Respondent from 1stJanuary 2008 until 18thFebruary 2012. She had been employed by the Kinsella family business from October 2004.
There was some dispute between the parties over who her employer was as the Complainant transferred from Mr Paddy Kinsella trading as Kinsella’s of Rocklandsto Mr Séan Kinsella’s business at Killurin, Wexford in April 2011. The Court in this appeal accepts the Rights Commissioner’s finding that the correct Respondent and the Employer at the relevant time was Mr Paddy Kinsella trading as Kinsella’s of Rocklands as named by the Complainant.
Preliminary Issue
In its appeal of the Rights Commissioner’s Decision the Respondent submitted that the Complainant’s claims were out of time and were therefore statute-barred. The complaint was received by the Rights Commissioner Service of the Labour Relations Commission on 28th April 2012, i.e. outside six-months of the alleged contraventions complained of. The Rights Commissioner made no reference to granting an extension of time, however, he found in favour of the Complaint’s complaints under Sections 12 and 20 of the Act.
In her complaint the Complainant alleged that since she commenced working in Killurin in April 2011 she frequently did not receive rest breaks during her shift in breach of Section 12 of the Act and contrary to Article 3 of the Organisation of Working Time (Breaks for Shop Employees) Regulations S.I. No. 57 of 1998. Furthermore she claimed that she was underpaid five hours' pay per week holiday pay since 1stApril 2008 in contravention of Section 20 of the Act and contrary to Article 3 of the Organisation of Working Time (Determination of Pay for Holidays) Regulations S.I. No. 475 of 1997.
The Complainant was absent on sick leave from 4thOctober 2011 until the 19th January 2012 and did not return to work until the date of the termination of her employment on 18thFebruary 2012. Therefore, the Respondent contended that there can have been no contravention of the Act in the six months prior to the alleged contraventions as the Complainant was not present in the workplace to avail of meal breaks and the last date she was paid holiday pay was in September 2011.
Section 27(4) of the Act provides that a Rights Commissioner (and the Labour Court on appeal) cannot entertain a complaint unless it is presented to the Rights Commissioner within six months of the contravention complained of. By application of that provision only such contraventions of the Act as may have occurred on or after 29thOctober 2011 could be taken into account for the purpose of awarding redress under the Act. The Complainant seeks to rely on alleged contraventions extending over a significantly longer period.
Section 27(5) of the Act provides that the time limit can be extended by a further period not exceeding 12 months where the Rights Commissioner (or the Labour Court on appeal) is satisfied that the delay in presenting the complaint was due to reasonable cause.
The Court sought submissions from both parties on this point and by letter dated 14thOctober 2013 the Complainant stated that the Rights Commissioner made his decision based on the evidence presented to him on the day. She stated that when he looked at the facts surrounding the case, he noted that she had been ill and because of her illness her dismissal did not come into effect until she was better and that this brought her legally into the period where her application was valid regarding her application for an extension.
By letter received on 18thOctober 2013 to the Court, the Respondent submitted that the Rights Commissioner granted an extension of time pursuant to Section 27(5) of the Act without the Complainant submitting details of any reasonable cause for the delay in submitting her claim and that he did so in the absence of any submission on the issue. The Respondent submitted that the Complainant did not nor could not make any argument for reasonable cause and that no case for reasonable cause was presented either at the Rights Commissioner hearing or at the Court hearing. The Respondent contends that the Rights Commissioner erred in accepting that reasonable cause existed for extending the time limit.
Decision of the Court
Having considered the oral and written submissions made by both parties and the additional information sought by the Court on the preliminary issue, the Court notes that the complaint under the Act covers a period when the Complainant was in the employment of the Respondent up until 18thFebruary 2012. However, she was on sick leave from 4thOctober 2011 until the 19th January 2012 and did not return to work until her employment was terminated on the 18th February 2012 and accordingly, was not at work during this time so that there can be no breach of Section 12. Furthermore, she was not in receipt of holiday pay therefore there was no breach of Section 20 during this period.
The Complainant’s employment terminated on 18thFebruary 2012 and she did not refer her claim under the Act until 28thApril 2012. Had the Complainant lodged her claim within six weeks of her dismissal she would have been in time to submit allegations of contraventions of the Act during a period when she was at work.
Therefore, in considering whether or not to extend the period of time, the Court must consider the reasons advanced for the delay in submitting her claim during this period from 18thFebruary 2012 to 3rdApril 2012.
The test for deciding if reasonable cause is shown for the purpose of the Act was considered by the Court inCementation Skanska (Formerly Kvaerner Cementation v CarrollLabour Court Determination WTC0338 (October 28, 2003). 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 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 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 notes that the Complainant informed the Rights Commissioner that on 19thJanuary 2012, following a period of illness, she called to the Respondent’s premises to hand in some medical certificates and inform Management that she was fit to return to work. On that basis, as the Complainant was fit for work from 19thJanuary 2012, the Court cannot accept that the grounds advanced by her for not having presented her claim before 28thApril 2012 either explains the delay or excuses the delay. Accordingly, the Court cannot accept that reasonable cause has been shown to justify an extension of the statutory time limit.
Determination
For all of the reasons set out above the Court is not satisfied that the Complainant has shown reasonable cause for extending time in accordance with Section 27(5) of the Act and accordingly overturns the Decision of the Rights Commissioner. In these circumstances the Court upholds the Respondent’s appeal.
Having regard to the findings set out above the within appeal is allowed and the Decision of the Rights Commissioner is set aside.
Signed on behalf of the Labour Court
Caroline Jenkinson
19th November, 2013______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.