DWT1628

FULL RECOMMENDATION

WTC/16/25

DETERMINATIONNO.DWT1628

R-157338-WT-15

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997

PARTIES :

MCDONALDS RESTAURANTS OF IRELAND PLC
(REPRESENTED BY MAPLES AND CALDER)

- AND -

MARY COMERFORD
(REPRESENTED BY JAMES NERNEY B.L., INSTRUCTED BY JF WALSH SOLICITORS)

DIVISION :

Chairman: Mr Foley
Employer Member: Mr Marie
Worker Member: Mr Shanahan

SUBJECT:
1. An appeal of an Adjudication Officers Decision no: r-157338-wt-15.

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on the 11th February 2016 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 22nd March 2016. The following is the Decision of the Court.

DETERMINATION:

This is an appeal of a Rights Commissioner Decision in a complaint by Ms Mary Comerford (the Complainant) against her former employer Mc Donalds Restaurants of Ireland Ltd (the Respondent).

The Court decided to consider first the request by the Complainant for an extension of time in accordance with section 27(5) of the Act.

Extension of Time

Section 27 of the Act in relevant part provides as follows:

27(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.
(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.

Section 27(4) of the Act 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 received by the Rights Commissioner on 24^thJune 2015. 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 25^thDecember 2014, and as the Complainant commenced a period of sick leave on 1^stDecember 2014 there can be no contravention of the Act in the six month period prior to the date of claim. 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 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 . 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.

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 Complainant made a formal complaint to the Respondent on 26^thSeptember 2014 under the Respondent’s internal grievance procedures. She contends that she awaited the outcome of that process in the hope that the within matter would be resolved in the course of resolution of her complaint made to the Respondent on 26^thSeptember 2014.

Her complaint was determined by the Respondent in accordance with the Respondent’s internal procedures on 30^thJanuary 2015. That determination found against the Complainant. She appealed that determination as provided for in the Respondent’s internal procedures and an appeal decision issued on 27^thFeb 2015. She states that she retained a hope of resolution of her complaint for a period after her appeal under the grievance procedure was finalised in February 2015. She contends that the respondent contributed to her expectation in that regards.

The Court has been advised by the Respondent that the complaint referred to by the Complainant and made in 26^thSeptember 2014 was in respect of alleged bullying and harassment. The Respondent states that the complaint made in September 2014 did not relate to working hours. That assertion was not contradicted before the Court by the Complainant.

Discussion

It is clear that the Complainant must both explain the delay and provide a justifiable excuse for the delay. She must also satisfy the Court, as a matter of probability, that the excuse proffered actually caused the delay in the sense that the factors relied upon operated to prevent her from presenting her claim in time.

The reason for delay put forward by the Complainant in this case relates to her participation in internal procedures of the Respondent which were initiated on foot of a complaint made by the Complainant. That complaint has not been suggested as being related to, or founded upon, the matters which are the substance of the within complaint.

The internal procedures of the Respondent were exhausted on 27^thFebruary 2015 and the within complaint was not received by the Labour Relations Commission until 24^thJune 2015. The Complainant states that subsequent to the 27^thFebruary 2015

“there followed extensive correspondence between the parties which, at times, gave the impression and induced the Claimant to believe that there may be further avenues of appeal or internal grievance mechanisms which could or should be explored and invoked by the claimant.”.

The Complainant made specific reference to a mail from the Respondent dated 28^thMay 2015 and a further mail from the Respondent received after she had made her complaint to the Labour Relations Commission.

The Court cannot accept that the operation of the Respondent’s internal procedures and subsequent interactions as described by the Complainant to the Court operated to prevent the Complainant from initiating the within complaint within the statutory time limit.

Determination

Having regard to all the circumstances the Court is not satisfied that the Complainant has explained the delay or provided a justifiable excuse for the delay in making the within complaint. Consequently the Court must uphold the decision of the Adjudication Officer / Rights Commissioner as regards the Complainant’s application for an extension of time.

The appeal is disallowed and the decision of the Adjudication Officer / Rights Commissioner

Signed on behalf of the Labour Court

Kevin Foley
CR______________________
12th April, 2016Deputy Chairman

NOTE

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