DWT1410

The Claimant presented his claim to a Rights Commissioner on 15^thMarch 2013. While other matters were raised in the original reference the only aspects of the complaint pursued at first instance was that the Respondent failed to provide the Claimant with any or adequate rest and intervals at work in accordance with Section 12 of the Act. Consequently that is the only matter before this Court in the appeal.

Preliminary Matter

Section 27(4) of the Act provides that the a Rights Commissioner (and this Court on appeal) may not entertain a complaint under a relevant provision of the Act if it is presented to the Rights Commissioner after the expiration of the period of 6months beginning on the date of the contravention to which the complaint relates. As the within complaint was presented to the Rights Commissioner on 15^thMarch 2013 the cognisable period for the purpose of the claim is that commencing on 16^thSeptember 2012. The Complainant’s employment with the Respondent terminated on 1^stOctober 2012. Consequently, in accordance with Section 27(4) of the Act the within complaint can only be entertained in so far as it related to contraventions of the Act that occurred between 16^thSeptember and 1^stOctober 2012. However, he contends that the contraventions of which he complained extended over a significantly longer period.

Section 27(5) of the Act provides that notwithstanding subsection (4) a Rights Commissioner (and the Court on appeal) may enlarge the time for bringing a complaint specified in Subsection (4) by up to a further 12 months where reasonable cause is shown for so doing.

It appears from the particulars of his claim, set out in his written submission to the Court, that in the period between 16^thSeptember and 1^stOctober 2012 the breaks afforded to the Claimant fell short of what was required on two occasions by some 30 minutes each. That claim is based on the Claimant’s contention that he was a shop worker within the meaning of the Organisation of Working Time (Breaks at Work for Shop Employees) Regulations 1998 (S.I. 57 of 1998). These Regulations provide that ‘shop workers’ are to be afforded a break of one hour if they work between 11.30 am and 2.30 pm.

In these circumstances the Claimant sought an enlargement of time pursuant to Section 27(5) of the Act. The Rights Commissioner refused to grant an extension of time. The Claimant now appeals against that refusal.

Having regard to thede minimisnature of the contraventions complained of in the six month period preceding the presentation of the claim, it appeared to the Court that considerable time and expense could potentially be saved by dealing with the application to extend time as a preliminary matter. Accordingly, this Determination deals only with that application.

The Facts Relied Upon

The Claimant told the Court in evidence that his partner became pregnant in or about February 2011. He said that when she informed her employer of the pregnancy her employment was terminated. The pregnancy was difficult due to complication of which he gave details. The Claimant’s daughter was born on 13^thOctober 2011 and she suffered from significant health problems which placed him under emotional and physical strain. According to the Claimant, these factors combined to prevented him from considering if he should initiate a claim under the Act.

In cross-examination the Claimant was asked if he had claimed before the Rights Commissioner that the reason for the delay was that he feared losing his job if he complained. He said that he could not recall what he told the Rights Commissioner. In response to a question from the Court the Claimant said that he was concerned that if he made a complaint his hours would be reduced or that his employment would be terminated. He accepted that he did consider making a complaint while he was still in employment but decided not to do so for those reasons.

Reasonable Cause

The test for deciding if reasonable cause has been shown for an extension of time under Section 27(5) of the Act is well settled in a line of previous decisions of this Court, starting with the decision inCementationSkanska (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 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.

In contending that the Court should exercise its discretion to extend time Counsel for the Claimant referred the Court to the decisions of the High Court inTK v The Residential Institutions Redress Board,Unreported, High Court, Peart J, 8^thFebruary 2013 and that of Laffoy J inMinister for Finance v Civil and Public Services Union & Ors[2007] 18 ELR 36. The Court was also referred to the decision of this Court in Determination EET034,Gaelscoil Thulach na Nog v Joyce.

Discussion

The Court has considered each of the cases relied upon by the Claimant in reaching its conclusion. The decision inTK v The Residential Institutions Redress Boardconcerned an application by way of judicial review to set aside a decision by the Respondent refusing an extension of time in which to bring proceedings under the Residential Institutions Redress Act 2002. It was not disputed that the applicant was at all material times aware that in order to bring her claim for redress within the time prescribed in Section 8(1) of the 2002 Act, she had to do so on or before 15^thDecember 2005. Her application was not received by the Respondent until 16^thOctober 2009. Section 8(2) of the 2002 Act conferred upon the Respondent a power to extend the period within which a claim was brought“at its discretion and where it considers there are exceptional circumstances”. The applicant decided not to pursue her application because she feared that her mother might withdraw her application if she became aware that she was also pursuing a claim.

In that case Peart J found on the facts of the case that the Respondent had wrongly refused to exercise its discretion in the applicant’s favour. The Court found that, first, the Respondent had not accepted the evidence of the applicant that she was unable, as opposed to unwilling, to go to a solicitor without telling her mother about it, because the Respondent had come to its own contrary view. Secondly, the Respondent had misstated, in its decision, the evidence given by the applicant in that regard and had relied on that misstated evidence in its decision. That raised the question whether there actually was any evidence before the Respondent for its conclusions, and whether it had relied upon an incorrect understanding of the evidence. Peart J concluded that the Respondent had fallen into error in its assessment of the evidence and he granted the relief sought.

Minister for Finance v Civil and Public Services Union & Orsinvolved a claim by a number of civil servants that their absence of actual knowledge concerning their legal rights excused their failure to make a claim under the Employment Equality Act 1977 within the statutory time-limit of 6 months. The Respondents had claimed that they were unaware of their right to pursue claims under the Act until the former European Court of Justice gave judgment in case C-1/95,Gerster v Freistaat Bayern[1997] E.C.R. 1-5253, which dealt with the point on which they were relying in their substantive claim.Laffoy J held that this Court had wrongly decided to grant an extension of time on the grounds relied upon. The High Court considered the legal principles arising in the case in the context of the jurisprudence applicable in cases involving the Statute of Limitations 1957. It was pointed out that in the absence of evidence that the plaintiff was under a disability of a type that prevents the statutory limitation period running, the absence of subjective knowledge on the part of the Respondents concerning their constitutional or legal rights, or that an action is likely to be successful, does not prevent a cause of action accruing and time running under the Act.

The Judge pointed out that while it is clear that the Act of 1957 does not contain an express provision for the enlargement of time this does not render the area unhelpful in the establishing of the intention of the Oireachtas in enacting the 1977 provision. The Judge went on to hold that it must be assumed that the Oireachtas intended that the jurisprudence which generally governs time-limits would be applicable to applications to enlarge time under the Act of 1977. Theratioof that case is encapsulated in the Court’s finding that a failure to pursue a claim, which has crystallised, until a legal precedent is in place which clarifies the law and indicates that the claim is likely to be successful, followed by a prosecution of the claim when the precedent is publicised, does not constitute “reasonable cause” within the meaning of Section 19(5) of the Act of 1977.

InGaelscoil Thulach na Nog v Joycethe applicant has been provided with the wrong forms on which to initiate her complaint by her former solicitors. As a direct result of this error her claim, which should have been lodged with the Labour Court, was directed to the Equality Authority, which then redirected it to the Equality Tribunal which, in turn, redirected to the Labour Court. By the time that it was eventually correctly lodged the claim was out of time. The Court held that this confluence of mishaps sufficiently excused the delay and an extension was granted.

Conclusion

The factual matrix and the applicable legal principles on which each of the cases discussed above were decided was materially different to those of the instant case. However, inMinister for Finance v Civil and Public Services Union & OrsLaffoy J. adopted the reasoning of Costello J (as he then was) inO’Donnell v Dun Laoghaire Corpin identifying the appropriate test in a case such as this. It was held that the reason relied upon must excuse the delay on an objective standard. That reasoning was also followed by this Court is formulating the test set down inCementationSkanska (Formerly Kvaerner Cementation) v Carroll, referred to earlier in this Determination.

In the instant case the Claimant accepted in evidence that he had considered referring his claim while he was still in employment but decided against doing so because he feared that his employer would retaliate against him. That was the reason which he gave to the Rights Commissioner in advancing his application, as appears from her Decision. It is also the reason given by the Claimant in the written submission to the Court prepared on his behalf and on his instructions.

The Court accepts the Claimant’s evidence that he suffered emotional upset from his partner’s difficult pregnancy and the health problem affecting his daughter. The Court has, however, difficulties in accepting that these factors explained his failure to pursue a claim under the Act within the time limits or that they excused that delay. The Claimant’s own evidence was that he considered making a claim while he was still in employment and that he decided against doing so because he believed that the Respondent would retaliate by either reducing his hours or by dismissing him. That belief was purely subjective and no evidence was proffered to establish any objective grounds to support that belief. It is thus clear that the Claimant was not prevented from making his claim in time but that he chose not to do so. Moreover, while the Claimant ceased to work for the Respondent on 1^stOctober 2012 he further delayed in presenting his claim until 15^thMarch 2013.

In all the circumstances the Court has reached the conclusion that the Claimant has neither explained the delay nor has he provided a justifiable excuse for the delay. Accordingly, the application for an extension of time is refused and the Decision of the Rights Commissioner to similar effect is affirmed.

The Result

The result of the Court's Decision is that the cognisable period for the purpose of the within claims is that commencing on 16^thSeptember 2012 and ending on 1^stOctober 2012. As pointed out earlier in this Determination, in particularising his claim the Claimant contended that in that period he was deprived of adequate breaks on two occasions, namely on 23^rdSeptember 2012 and on 30^thSeptember 2013. As previously noted, that contention is based on the proposition that the Claimant’s employment came with in ambit of the Organisation of Working Time (Breaks at Work for Shop Employees) Regulations 1998. The Rights Commissioner found that these regulations were inapplicable because the Claimant was at all times employed as a security worker and not as a shop worker.

This aspect of the claim was not fully argued before the Court. Even if the Claimant succeeds in convincing the Court that the Rights Commissioner was incorrect in her conclusion on this point, the total reckonable loss for which he could recover amounts to one hour.

In these circumstances the Court is prepared, if requested to do so, to consider further submissions from the parties on the applicability of the Regulations to the Claimant, and if they are applicable, whether they were contravened.

Signed on behalf of the Labour Court



Kevin Duffy
21st January, 2014______________________
JFChairman



NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.