FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : G & C TAKEAWAY LIMITED T/A MANOR TAKEAWAY REPRESENTED BY RUANE O'CONNOR SOLICITORS - AND - NOURA ABOUTABIT (REPRESENTED BY MR C ELDERS B.L. INSTRUCTED BY TRAVERS & CO SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision No: r-130500-wt-13/DI
BACKGROUND:
2. This case is an appeal by the employer of Rights Commissioner's Decision No: r-130500-wt-13/DI submitted on the 13th August 2014 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 13th October 2014. The following is the Court's Determination:
DETERMINATION:
Ms Noura Aboutabit brought a complaint before a Rights Commissioner against her former employer G & C Takeaway Limited t/a Manor Takeaway pursuant to the Organisation of Working Time Act 1997 (the Act) alleging breaches of Section 19 and 21 of the Act. The Rights Commissioner allowed an extension of time under Section 27 (5) of the Act, he upheld the complaints and awarded the sum of €5,250.00
The Employer appealed the Rights Commissioner’s Decision to allow an extension of time.
For ease of reference the parties are referred to as they were at first instance. Hence Ms Noura Aboutabit is referred to as “the Complainant” and G & C Takeaway Limited t/a Manor Takeaway is referred to as “the Respondent”.
The Complainant was employed as a Takeaway Assistant from 17thNovember 2005 until 17thNovember 2012. She was paid €90.00 per day. She claimed that she had not received her annual leave or public holiday entitlements under the Act.
Section 27(4) provides, in effect, a time-limit of six months for the bringing of a complaint under the Act starting from the date of the contravention to which the complaint relates. The within complaint was presented to the Rights Commissioner Service on 11thFebruary 2013. Hence, by application of the time-limit at Section 27(4), the Court can only have regard to contraventions found to have occurred on or after 12thAugust 2012. However, Section 27(5) allows the Court to enlarge the time-limit by up to a further 12 months where reasonable cause is shown for the delay in referring the complaint to the Rights Commissioner. The Complainant applied to the Court for an extension of time in accordance with that provision.
In the course of the hearing the Respondent accepted that there were monies owing in respect of outstanding annual leave under the Act and in respect of one public holiday for the cognisable time period covered by Section 27(4) of the Act.
Mr Ciarán Elders, B.L. instructed by Travers & Co Solicitors, on behalf of the Complainant stated that the delay in this instance was due to the proximal relationship between the parties where the Complainant was treated like“one of the family”and had lived with the owners of the Takeaway for an extended period of time. As an example of that strong bond Mr Elders referred to time when the family secured and paid for professional legal assistance for the Complainant between February 2007 and August 2008 when she faced legal issues at the time.
Mr C Ruane, Ruane O’Connor Solicitors, on behalf of the Respondent stated that the Complainant had ample opportunity to submit a claim under the Act and submitted that the credibility of her evidence should be scrutinised.
Conclusions of the Court
The Complainant gave evidence under oath to the Court and the Court gave careful consideration to the written and oral submission made by both parties.
As the Respondent accepted liability in respect of the claims before the Court the only issue for the Court to decide was in respect of the application for an extension of time under Section 27(5) of the Act.
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.”
This test imposes a relatively low threshold of reasonableness on an applicant for an extension of time. There is, however, some limitation on the range of issues which can be taken into account in considering such an application. A central decision of the High Court in identifying where those limitations lie is the decision of Costello J. (as he then was) inO’Donnell v Dun Laoghaire Corporation[1991] ILRM 301. Here it was pointed out that a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings. The Judge pointed out that the reason relied upon must excuse the delay on an objective standard.
In line with the position held by the Court inCementation, it must consider whether reasonable cause has been shown for the delay. It is well settled that it is for a Complainant seeking an extension of time to both explain the delay and put forward a reasonable excuse for the delay. In this case the Court notes that the close proximity between the Complainant and the Respondent broke down in 2010 when the Complainant sought to assert her rights and she made enquiries of the Respondent regarding,inter alia,holiday and public holiday entitlements. The Respondent denied her these rights.
In such circumstances, the Court cannot accept that it was not possible for the Complainant to seek assistance and to refer a claim under the Act. Accordingly the Court cannot accept that the grounds advanced by the Complainant for not having presented her claim before 3rdFebruary 2013 either explains the delay or excuses the delay and therefore, she does not met the standards set down. Therefore the Court must find that reasonable cause has not been shown to justify an extension of the statutory time-limit.
It follows that the cognisable period for the purpose of the within claim under Section 19 is from 1stApril 2012 [the commencement of the leave year] and 17thNovember 2012 [the date of termination of her employment], and for the purposes of Section 21 is from 12thAugust 2012 [six months prior to the date of claim] until 17thNovember 2013.
On that basis the Court finds that the Complainant had an outstanding entitlement to 12.45 days annual leave which equates to €1,120.50 and an outstanding public holiday entitlement of one day, which equates to €90.00.
In all the circumstances of this case and taking account of the CJEU caseVon Colson & Kamann v Land Nordrhein – Westfalen[1984] ECR 1891 where the CJEU made it clear that where such a right grounded in European law is infringed the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions, the Court determines that the Complainant should be paid the sum of €1,500.00 in respect of the infringement of Section 19 of the Act. This sum includes compensation for the economic loss which the Complainant sustained as a result of the breach of her Community rights and an element of compensation which the Court is satisfied is fair and equitable in the circumstances. The Court determines that the Complainant should be paid €90 in respect of the infringement of Section 21 of the Act.
Therefore the Court hereby determines that the Respondent pay to the Complainant a total sum of €1,590.00 within six weeks from the date of this Determination.
Accordingly, the Decision of the Rights Commissioner is varied and the Court upholds the Respondent’s appeal.
Signed on behalf of the Labour Court
Caroline Jenkinson
6th November 2014______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.