FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MOHAMAD WASEEM (REPRESENTED BY MCGOVERN & ASSOCIATES SOLICITORS) - AND - MS AGITA LAUGALE (REPRESENTED BY MR ADRIAN HARRIS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. An appeal against a Rights Commissioner’s Decision r-123684-wt-12.
BACKGROUND:
2. Two Rights Commissioner hearings took place on the 5thSeptember 2012 and 8thJanuary 2013, and a Decision was issued on the 14thMay 2013.
The Employer appealed the Decision of the Rights Commissioner to the Labour Court on the 30thMay 2013 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 17thOctober 2013.
DETERMINATION:
This is an appeal by Mohamad Wassem (the Respondent) against the Decision of a Rights Commissioner in a claim by Agita Laugale (the Claimant) under the Organisation of working Time Act 1997.
The Respondent did not appear at the hearing of the appeal but he was represented by a solicitor.
The only issue raised in the hearing of this appeal relates to the Decision of the Rights Commissioner to extend time for the making of the complaint. The Claimant contends that her employment ended in or about June 2011. The within claim was made on 12thJune 2012.
Evidence was received from the Claimant and from her husband, Assad Munir Ahmad.
Three points were raised to explain the delay, namely,
1. That the Claimant did not know of the time limits,2. That she was reluctant to raise the issue because of her husband uncertain legal status in Ireland
3. Extensive efforts were made to resolve the matters giving rise to the dispute directly with the Respondent and assurances were given to the Claimant’s husband that those issues would be resolved. When the Claimant’s husband was finally told that the Respondent was not conceding the claim the Claimant moved promptly.
The law requires the Claimant to establish reasonable cause for the extension of time that she requires. The test to be applied in considering if reasonable cause is shown is that formulated by this Court in Determination DWT0328,Cementation Skanska v Carroll. It requires the Claimant to show that there are reasons that both explain the delay and afford and excuse for the delay.
In this case the Court does not accept that the points referred to at 1 and 2 above either explain the delay in issue nor afford an excuse for the delay.
On the third point relied upon the Court heard uncontested evidence from the Claimant and her husband in relation to their engagement with the Respondent concerning the within claims. The import of that evidence was that assurances were given by the Respondent over an extended period that he would discharge the amounts being claimed by the Claimant. It was in late April 2012 or early May of that year when the Respondent told Mr Ahmad that he would not concede these claims. Thereafter the Claimant did move promptly in making her claim. This, in the Court’s view meets the test inCementation Skanska.Furthermore, there was no evidence before the Court to indicate that the Respondent suffered any prejudice by the delay.
In these circumstances the Court is satisfied that the time for making this claim should enlarged so as to bring it within time.
Since no other issue was raised in the hearing of the appeal the Court is satisfied that the appeal cannot succeed.
Determination
The appeal is disallowed and the Decision of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
CR______________________
22nd October, 2013.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.