DWT13127

This is an appeal by Peter Hughes (the Claimant) against the Decision of a Rights Commissioner in his claim against his former employer, Quality Irish Stoves Limited (the Respondent) under the Organisation of Working Time Act 1997 (the Act), the claim relates to the payment in respect of annual leave and public holidays in the period between June and December 2011.

The Rights Commissioner found that the claim was presented outside the time limit prescribed by s.27 of the Act. She decided that there were no grounds upon which she could extend the time for reasonable cause shown. The Claimant appealed against that Decision. Accordingly the first question which the Court must determine is whether an extension of the time limit can be granted in this case so as to bring the claim within the jurisdiction of the Court.

Facts

The material facts can be summarised as follows:

The Claimant commenced working for the Respondent on or about 11^thJune 2011. He was engaged on what purported to be a contract for services. In or about March 2012 the Revenue Commissioners decided that the relationship between the Claimant and the Respondent was one of employment. Representations continued to be made to the Revenue directed as disputing their decision in that regard. However, the Respondent treated the Claimant as an employee for all purposes after the Revenue’s decision and provided him with paid annual leave and public holidays in respect of the calendar year 2012. The Claimant contended that he was entitled to payment in respect of public holidays and annual leave in the period between June and December 2011. The Respondent contended that the Claimant was, in fact, paid for all public holidays and annual leave falling due in that period.

Discussions and correspondence ensued between the parties on this matter. It appears that on or about 4^thSeptember the Respondent finally and definitively rejected the Claimant’s claims to additional payments for the period in question. The Claimant presented his complaint under the Act to a Rights Commissioner on 17^thOctober 2012.

The Time Limit

It is well settled that a cause of action under the Act in respect of annual leave accrues at the end of the statutory leave year to which the leave claimed relates. (seeRoyal Liver Assurance Limited v Graham Macken, Five Others and SIPTU, Unreported, High Court, Lavan J. 15^thNovember 2002) The statutory leave year runs from 1^stApril until the 31^stMarch of the following year. Hence, any cause of action which the Claimant has in respect of the annual leave in question accrued on 31^stMarch 2012. It was from that date that the time limit started to run. The time limit expired on 1^stOctober 2012. In the case of public holidays the time limit runs from the date on which each of the holidays occurs.

Section 27(5) of the Act provides as follows: -

• “Notwithstanding subsection (4) a Rights Commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months of such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause”.

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  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 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 into 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.

Conclusion on the time limit point

The time limit expired on 30^thSeptember 2012. The within claim was presented on 17^thOctober 2012. The evidence disclosed that up to 4^thSeptember 2012 the Claimant was engaged with the Respondent in seeking to obtain payment of the amount in dispute. However, on 4^thSeptember 2012 it became abundantly clear that the Respondent was not prepared to concede the Claimant’s claim. At that stage the Claimant was within the time limit. Nonetheless, he delayed for a further 17 days before presenting his claim to the Rights Commissioner. The Claimant contends that this delay was explained by his lack of knowledge of how to process his claim.

The delay in this case is case is relative short. The test inCementationprovides that a short delay may require a slight explanation. The Court can readily accept that a reasonable person in the circumstances of the Claimant would have taken some time to assess his position and to find out how he could proceed to challenge the position adopted by the Respondent. In these circumstances the Court accepts that the Claimant has both explained and justified the delay of some 17 days. The Court is further satisfied that the Claimant has presented a good arguable case and that the Respondent has not been prejudiced in any way by the delay.

In these circumstances the Court is satisfied that the time limit should be enlarged. Accordingly the Court extends the time limit up to up to the date of the commencement of the Claimant’s employment with the Respondent.

Substantive claim

The Claimant told the Court that he was contracted to work 138 days per year, which equated to 3 days per week. The agreed daily rate was €350. In some months he worked more than 3 days and in others he work less. An arrangement was entered into with the Respondent whereby he received a payment of €4,025 per month which amounted to an averaging of the days worked at 3per week over the year. He accepts that he took holidays in August and December 2011 and received the agreed amount of €4,025 in those months. He contends, however, that these payments were in respect of days actually worked over and above his contractual commitment in other months.

The Respondent contends that the payments in August and December 2011 were in respect of annual leave. The Respondent also contends that the Claimant was paid the full amount of €4.025 in respect of months in which a public holiday occurred.

Conclusions of the Court

There is a sharp conflict in the version of events proffered by the Claimant in comparison to that proffered by the Respondent. In these circumstances the Court must consider where the onus of proof lies as between the parties.

Section 25(1) provides: -

• 25.—(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

• (4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

In considering the evidence the Court noted that in the period in question both parties regarded the nature of the relationship between them as being based on a contract for services as opposed to one of employment. The Respondent did not consider the Claimant as having any entitlement of payment for holidays. In these circumstances it is highly unlikely that the Respondent would have paid the Claimant for holidays.

The Court has come to the view that the version of how the payments were calculated proffered by the Claimant is more plausible. Accordingly the Court is satisfied that all of the payments made to the Claimant were in respect of time worked and they did not include any payment in respect of annual leave or public holidays. On this finding the Claimant is entitled to succeed in his claim.

The Claimant is claiming payment in respect of holidays in the amount of €3,500. He is entitled to an award in that amount.

Determination

The appeal is allowed and the Decision of the Rights Commissioner is set aside. The Court directs the Respondent to pay the Claimant €3.500 in respect of annual leave and public holidays.

Signed on behalf of the Labour Court



Kevin Duffy
CR______________________
17th September, 2013Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.