DWT1411

FULL RECOMMENDATION

WTC/13/188

DETERMINATIONNO.DWT1411

(R-134676-WT-13/JT)

SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997

PARTIES :

E SMITH SCHOOL T/A THE HIGH SCHOOL
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)

- AND -

MR SEAN MC DONNELL

DIVISION :

Chairman: Mr Duffy
Employer Member: Ms Cryan
Worker Member: Mr Shanahan

SUBJECT:
1. Appeal Against Rights Commissioners Decision R-134676-Wt-13/Jt

BACKGROUND:

2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 21st November, 2013. A Labour Court Hearing took place on 21st January, 2014. The following is the Labour Court's Determination:

DETERMINATION:

This is an appeal by the Mr Sean McDonnell against the decision of a Rights Commissioner in his claim under the Organisation of Working Time Act 1997 (the Act) against his employer, E Smith School t/a The High School. The complaint was presented to a Rights Commissioner on 13^thJune 2013.

In this Determination Mr McDonnell is referred to as the Claimant and the School is referred to as the Respondent.

The facts giving rise to the claim can be summarised as follows: -

The Claimant is employed by the Respondent as a supervisor. His employment commenced on or about 29^thAugust 2005. He worked in a part-time capacity and it appears that his current wage is €426 per week.

From the commencement of his employment to January 2013 the Claimant did not receive any benefit from the Respondent in respect of public holidays. It is acknowledged that the Claimant was told by the Principal of the school that he had no such entitlement. The Claimant appears to have accepted that advice. On each occasion on which a public holiday occurred the school closed and the Claimant did not work. However he was not paid for the days in question. He thus received a day off on each public holiday but he was not paid for the days in question.

It appears that the Claimant received advice in late 2012 that, contrary to what he had been told by the Respondent, he was entitled to be paid for public holidays. He approached the school bursar and informed him of the advice that he had obtained. The bursar undertook to clarify the position and on doing so he became satisfied that the Claimant did have the entitlement which he claimed. The bursar undertook to pay the Claimant in respect of public holidays falling thereafter. This did not satisfy the Claimant and he made a complaint under Act on 13^thJune 2013. On 28^thJune the Respondent paid the Claimant the sum of €1108.12, which amount represented a day’s pay for each of the public holidays that fell in the eighteen months preceding the lodgement of his complaint.

Time limits
The Respondent submitted that the cognisable period for the purpose of the within claim is the six-month period ending on 13^thJune 2013. Section 27(4) of the Act provides as follows: -

(4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

That subsection is qualified by subsection (5) of s.27, which provides: -

(5) 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 after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.

The test for deciding if reasonable cause has been shown for an extension of time under s,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.

The Claimant told the Court that he had raised the question of his entitlement to public holidays with the Principal of the Respondent some three years previously. He said that he had been told in emphatic terms that he had no such entitlement having regard to the contractual basis upon which he was employed. The Claimant accepted what he was told and did not pursue the matter further at that time. He told the Court that he normally claimed social welfare benefits in respect of periods during which the school was closed and for which he was not paid. In or around January 2013 an official of the Department of Social Protection informed him that he could not claim benefits in respect of public holidays because he was entitled to payment from his employer for those days. He raised the matter again, this time with the bursar of the school who responded in the manner set out earlier in this Determination.

The Respondent does not take issue with the Claimant’s version of events. Moreover, it appears to the Court that it accepted the validity of the claim extending over a period of 18 months since that is the period that it took into account in providing retrospective payments in respect to public holidays that occurred in that period.

In these circumstances the Court accepts that the reason advanced by the Claimant for not initiating his claim before 13^thJune 2013 both explains the delay and affords a justifiable excuse for the delay. Accordingly, in accordance with s.27(5) of the Act the Court extends the time for the bringing of the within complaint by a period of 12 months beyond the period specified in s.27(4), that is to say, to the 14^thDecember 2011.

The Substantive Case
The Respondent denies that the Act was contravened. It contends that by paying the Claimant the monetary value of the public holidays which fell in the eighteen months prior to the date on which the claim was lodged it complied with the Act in respect to all public holidays that occurred in that period. The Court cannot accept that submission. InRoyal Liver Assurance Ltd v Macken[2002] 4 IR 427Lavan J considered the nature of an employer obligation under s.21(1) of the Act and the date on which a contravention arising from a failure to discharge that obligation accrues. The Judge said (at p437): -

The requisite infringement for the purposes of s 21(1) would arise in contexts where the employer has failed to elect between the various entitlements of an employee under s 21(1) or, where an employer fails to comply with a request made by an employee under s 21 (2), where the employer fails to give a paid day off on the public holiday or an additional day's pay, as the case may be. In each case, it seems the infringement would arise on the date of the public holiday itself

In this case the Claimant did have a day off on each of the public holidays in issue because the school was closed on those days. The Respondent was obliged by the statute to pay the Claimant for those days as the occurred. The passage quoted above from the judgment inRoyal Liver Assurance Ltd v Mackenindicates that in these circumstances the Act was infringed on the date of each of the public holidays concerned. Accordingly the Court must hold that the Claimant’s complaint is well founded. It must hold that s. 21 of the Act was separately contravened on each date on which a public holiday occurred in the period cognisable for the purpose of this claim up to January 2013, at which point the Respondent agreed to comply with the Act.

Redress
The redress available to a successful claimant under the Act is governed by s.27(3) thereof, as follows: -

(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:
- (a) declare that the complaint was or, as the case may be, was not well founded,
(b) require the employer to comply with the relevant provision,
- (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

This subsection makes it clear that the Claimant is not limited to recovering the economic or monetary value of the payments withheld. A Rights Commissioner, and this Court on appeal, may award compensation of such amount as is just and equitable having regard to all the circumstances subject to the upper limit of two years pay. All the circumstances include both aggravating and mitigating factors. It is thus appropriate for the Court to taken into account the duration over which the Claimant’s rights were infringed, the circumstances in which the Claimant was deprived of his right to payment for public holidays, the response of the Respondent when the claim was first raised and the degree of inconvenience suffered by the Claimant in vindicating his rights. It is clear, however, that the Court cannot award redress for those infringements of the Claimant’s rights that occurred outside the statutory time-limit.

In all the circumstances of this case the Court is satisfied that in addition to the arrears of wages already paid to him the Claimant is entitled to an award of general compensation. The Court measures the amount that is just and equitable at €1,500. The Respondent is directed to pay the Claimant compensation in that amount in addition to all payments previously paid. For the avoidance of doubt this amount is not in the nature of remuneration and should not be treated as such for the purposes of tax or other deductions.

Determination
The decision of the Rights Commissioner is set aside and substituted with the terms of this Determination

Signed on behalf of the Labour Court

Kevin Duffy
29th January, 2014______________________
CO'RChairman

NOTE

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