DWT1572

This is an appeal by Taimoor Khan (hereafter the Claimant) against the decision of a Rights Commissioner in his claim under the Organisation of Working Time Act 1997 (the Act) against his former employer, Alert One Security Limited (hereafter the Respondent)

The Respondent was informed of the date, time and place at which the Court would hear the appeal but failed to appear or be represented.

The Claimant worked for the Respondent between 26^thMay 2010 and 19^thAugust 2014 when his employment terminated.

The Claimant was paid at the rate of €10.00 per hour.

The Claims
The Claimant contends that he did not receive his statutory entitlements under the Act in respect to annual leave and public holidays over the currency of his employment. He also contends that he did not receive a premium in respect of Sunday working.

The Rights Commissioner Decision
In a decision dated 12^thMay 2015 the Rights Commissioner found that the claims in respect of holidays were not well founded. The Rights Commissioner did not state reasons for this decision, nor did he distinguish between the claims in relation to annual leave and public holidays. The claim in respect to Sunday premium was not addressed by the Rights Commissioner although it is clear from the decision that this matter was raised before the Rights Commissioner.

The evidence
The Claimant told the Court that he took extended leave in January 2014 up to mid-March of that year. He was paid for four weeks of this leave. He also made claims in respect to earlier years which, for reasons that will be addressed later in this Determination, cannot be considered by the Court.

The Claimant also told the Court that he worked on all public holidays and that he had not received any benefit in respect of those public holidays.

Finally, the Claimant contended that he worked on Sundays and received no additional compensation in respect of so doing.

The Claimant presented extensive documentation, including pay-slips, relating to the payments that he received over the duration of his employment. All of this documentation emanated from the Respondent. This documentation and the submissions of the Claimant have been taken into account in formulating this Determination.

Time Limit / Extension of Time
The within claims were presented to the Rights Commissioner in the month of November 2014 (the Claimant is unsure of the exact date in November and the Rights Commissioner decision does not record the date). Consequently, the limitation period of six months prescribed by s.27(4) of the Act runs from a corresponding date in May 2014 to that on which the claims were initiated. The Claimant told the Court that he had asked the Respondent on a number of occasions over the currency of his employment if he intended to pay him in respect of holidays. The Respondent assured him on a number of occasions that he would receive what he was due. The Claimant told the Court that he accepted the assurances that he was given in that regard. As he put it, “he took the Respondent’s word” that he would receive his entitlements.

Section 27(5) of the Act allows a Rights Commissioner, and this Court on appeal, to extend time by a further 12 months for reasonable cause shown. On the uncontested evidence of the Claimant, the Respondent misrepresented to him that he was either receiving his lawful entitlements or that he would receive those entitlements. The Claimant accepted his employer’s assurances in that regard and it is understandable, having regard to the circumstances of the Claimant, that he would have done so. It was only when the Claimant’s employment came to an end without having his entitlements met that he realised that that he had been misled. The Claimant told the Court that he became aware of the Citizens Information Service and having consulted that body he was advised as to how he could bring a claim under the Act. Having received that advice he acted promptly in initiating his claim.

In general, ignorance of one’s legal rights, as opposed to the underlying facts giving rise to those rights, cannot be accepted as excusing a failure to comply with a statutory time limit. In the instant case the Claimant is not relying on ignorance of the law,per se.Rather, as the Court understands it, he is relying on the combined effect of his lack of knowledge of how to process a claim and on the assurances given to him by the Respondent that he was either receiving his legal entitlements or that those entitlements would be met by the Respondent. In that regard it is well settled that material misrepresentation by a party, which caused or contributed to a delay in initiating a claim can constitute reasonable cause which both explains the delay and provides a justifiable excuse for that delay.

In all the circumstances the Court is satisfied that the Respondent’s misrepresentations to the Claimant constitute reasonable cause for the delay in presenting the within claims. The Court extends time to a period of 18 months from the date on which the claims were presented. Accordingly the cognisable period is from May 2013 until November 2014.

Conclusions of the Court

Annual Leave
It is well settled that a contravention of s. 19 of the Act (entitlement to annual leave) occurs at the end of the leave year to which the contravention relates. The statutory leave year is a year beginning on 1^stApril and ending on the next following 31^stMarch. The leave year beginning on 1^stApril 2012 ended on 31^stMarch 2013. That is outside the extended time limit and consequently any contravention of s.19 of the Act in respect of that leave year cannot be taken into account.

The leave year commencing on 1^stApril 2013 ended on 31^stMarch 2014. That is within the time limit, as extended. However the Claimant took extended leave in that period and from an examination of the pay-slips that he presented to the Court it is clear that he received four weeks’ pay in respect of that leave. Consequently the Respondent did not contravene s.19 of the Act in respect of that leave year.

Cessor Pay
The Claimant worked for the Respondent between 1^stApril 2014 and 19^thAugust 2014. While his final pay slip shows a payment of €200 marked as“hols/ Bonus /Other”the Claimant told the Court that this payment was in respect to monies owed to him for hours worked. He told the Court that he was not paid anything in respect of holiday pay for that period. The Court calculates that the Claimant was due €570 by way of cessor pay on the termination of his employment. On the uncontested evidence before it, the Court is satisfied that the Claimant was not paid that amount in contravention of s.23 of the Act.

Public Holidays
Between May 2013 and 19^thAugust 2014 (on which date the Claimant’s employment came to an end) there were 11 public holidays. On the uncontested evidence of the Claimant, the Court accepts he worked on each of these public holidays and that he did not receive any of the benefits prescribed by s. 21 of the Act in respect of those public holidays. Accordingly the Court must hold that the Respondent contravened the aforementioned provision on each of those occasions. The economic value of the Claimant’s loss is measured at €880.

Sunday Premium
On the evidence before it, the Court is satisfied that the Claimant received an appropriate premium on those Sundays that he worked during the cognisable period. Consequently the Respondent did not contravene s.14 of the Act in relation to the Claimant.

Outcome
For the reasons set out herein the Court finds:

• 
  1.The Respondent did not contravene s.19 of the Act in relevant period,

  2.The Respondent did contravene s 21 of the Act in respect of 11 public holidays falling between May 2013 and 19^thAugust 2014,

  3.The Respondent did contravene s.23 of the Act in failing to pay the Claimant the sum of €570 due to him is respect of outstanding annual leave on the termination of his employment,

  4.The Respondent did not contravene s. 14 of the Act

The Respondent is directed to pay the Claimant a total of €1,950 by way of redress.

Disposal
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
CR______________________
11th August, 2015.Chairman



NOTE

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