FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : STOBART (IRELAND) DRIVER SERVICES LTD (REPRESENTED BY PURDY FIRTZGERALD) - AND - SCOTT HAZEL (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms O'Donnell |
1. Appeal of Adjudication Officer Decision No. r-155960-wt-15/DI and r-156464-wt-15/DI.
BACKGROUND:
2. The Worker referred this case to the Labour Court on the 21 December, 2016, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court Hearing took place on the 6 March, 2017.
DETERMINATION:
This is an appeal by Mr Scott Hazel against the Decisions of an Adjudication Officer r-155960-wt-15/DI and r-156464-wt-15/DI under the Organisation of Working Time Act, 1997 (the ‘Act’). In this Determination the parties are referred to as they were at first instance, hence Mr Hazel is referred to as ‘the Complainant’ and Stobart (Ireland) Driver Services Ltd is referred to as ‘the Respondent’.
Background
The Complainant is employed as driver. Pursuant to the European Community (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131), he transferred to the Respondent’s employment in 2010. Following the transfer, the Complainant disputed the Respondent’s adherence to both his contractual terms and conditions of employment, in particular the application of a maximum 9-hour day, and his legal entitlement to be given 24 hours’ notice of his hours of work.
On 19thOctober 2014 the Complainant objected to the run he was allocated on that day as he was of the view that the anticipated working hours for the run would be in breach of both his contractual and legal entitlements as referenced above. The Complainant was suspended from work pending investigation in to his alleged refusal to undertake his allotted run. A disciplinary process followed resulting in the Complainant receiving a final written warning dated 25thNovember 2014. An internal appeal was unsuccessful. Complaints of breaches of the Act were received by the Workplace Relations Commission on 6thMay 2015 and 20thMay 2015. The Complainant also submitted related complaints under the Health, Safety and Welfare at Work Act, 2005, the Terms of Employment (Information) Act, 1994 and the Industrial Relations Acts, 1969-1990.
At the Adjudication Officer hearing on 26thNovember 2015 the Respondent argued that the Complainant had not submitted a valid complaint setting out the relevant provisions which had allegedly been contravened as required by Section 27(2) of the Act which states:-
- (2) An employee or any trade union of which the employee is a member, with the consent of the employee, may present a complaint to a rights commissioner that the employee's employer has contravened a relevant provision in relation to the employee and, if the employee or such a trade union does so, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, shall give a decision in writing in relation to it and shall communicate the decision to the parties.
The hearing was rearranged and the Workplace Relations Commission subsequently received details from the Complainant on 6thFebruary 2016 regarding alleged breaches of Section 17 of the Act. A rearranged hearing took place on 16thFebruary 2016.
The Adjudication Officer decided that the complaint was not validly submitted until 6thFebruary 2016 when the relevant section of the Act which had allegedly been breached, Section 17, was identified. He further found that in circumstances where the alleged breaches of Section 17 of the Act occurred on 19thOctober 2014, the complaints, whether they were regarded as submitted on 6thMay 2015 or 6thFebruary 2016, were outside the allowable six month period for submitting a complaint as per Section 27(4) which states:-
- (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.
No case was made to the Adjudication Officer for an extension to the time limit as provided for at Section 27(5) of the Act which states:-
- (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 Complainant appealed the Adjudication Officer Decisions to this Court on 21stDecember 2016. The appeal came before the Court on 6thMarch 2017.
Preliminary Issue
The Respondent’s representative, Mr. Einde O’Donnell of Purdy Fitzgerald Solicitors, raised the same preliminary issue as to whether a complaint had been validly made on time to the Workplace Relations Commission. In support of its position, the Respondent stated that in circumstances where the Complainant had simply listed the Act in the complaint form submitted on 6thMay 2015 without any further details of the complaints under the relevant sections of the Act then a valid complaint was not submitted until the relevant impugned section was identified on 6thFebruary 2016. The Respondent relied on Section 27(2) of the Act, as referred to above.
The Respondent further argued that in circumstances where the alleged breaches of Section 17 of the Act occurred on 19thOctober 2014, the complaints submitted on 6thFebruary 2016 were outside the allowable six month period for submitting a complaint as per Section 27(4).
The Complainant’s trade union representative, Ms Karan O’Loughlin SIPTU, stated that the complaint under the Act was validly submitted on 6thMay 2015. An extension as per Section 27(5) of the Act was sought on the basis that the delay in submitting the complaint was due to confusion on the Union’s part as a result of a multitude of claims being dealt with by the Union at that time for members employed with the Respondent.
Discussion and Findings
Section 27(2) of the Act is clear. It requires that a complaint may be presented to the Rights Commissioner (now an Adjudication Officer) that a relevant provision has been contravened. The Act comprises of a significant number of provisions, each of which provides for separate and distinct entitlements for employees, such as rest breaks at work, maximum weekly working hours, rest intervals between working periods, Sunday premium and information on working time. It is consequently required that a complainant identify what the relevant impugned provision is so that a respondent is aware of which particular entitlement is at issue.
In the instant case the Court is satisfied that a valid complaint in accordance with Section 27(2) of the Act was not made until the detail was submitted on 6thFebruary 2016 which identified Section 17 as the impugned provision. Thus, the complaint was submitted some fifteen months after the event which related to the alleged breach which occurred on 19thOctober 2014 and is therefore statute barred.
As the alleged breach of Section 17 occurred outside of the extended time period, i.e. outside the twelve month period, which may be allowed where reasonable cause applies it is not necessary to make any findings on the arguments for an extension presented by the Complainant’s representative.
Determination
The Court finds that the complaint was presented outside of the time limits allowable under Section 27 of the Act is therefore statute barred.
The Decision of the Adjudication Officer is affirmed accordingly.
No submission was made by or on behalf of the Complainant regarding an alleged breach of Section 16(2) of the Act as referred to the Workplace Relations Commission on 20thMay 2015. Accordingly, the Decision of the Adjudication Officer regarding that complaint is also affirmed.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
29th March, 2017______________________
CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.