FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : CH MARINE LIMITED TRADING AS BANTRY BAY CANOES (REPRESENTED BY ANNE TAIT & CO SOLICITORS) - AND - CIARÁN O' CONNOR DIVISION : Chairman: Ms O'Donnell Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer Decision No. ADJ-00011634.
BACKGROUND:
2.
An Adjudication Officer hearing took place on 30 April 2018 and a Decision was issued on 20 July 2018. The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 28 August 2018 in accordance with section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 5 October 2018.
The following is the Court's Determination:-
DETERMINATION:
This is an appeal by Ciaran O’ Connor against Adjudication Officer’s Decision ADJ-00011634 pursuant to the Organisation of Working Time Act 1997 (the Act). It is his complaint that he did not get daily breaks. The Adjudication Officer found that the claim was out of time and that he had no jurisdiction to hear the claim.
The cognisable period for the lodging of a claim under the Act is 28thApril 2017 to the 27thOctober 2017 being the date the claim was lodged with the WRC.
It is for the Complainant to identify alleged breaches of the Act within that period.
The Court decided to deal with the preliminary issue of time limits in the first instance.
Complainant’s case
The Complainant had engaged a firm of Solicitors to act on his behalf in May 2017. He subsequently parted company with the legal firm and at that stage lodged his claim. The Complainant did not identify any alleged breaches of the Act within the cognisable period.
Respondent’s case
It is the Respondent’s case that they were engaging with the Complaints solicitors and progress was being made when he decided to dispense with his legal team. The Respondent then engaged with the Complainant. It is their position that the Complainant has not demonstrated any exceptional circumstances for the delay in lodging the claim and therefore the Labour Court does not have jurisdiction to hear the claim.
The applicable law
Section 10;
- ……
(6)A rights commissioner shall not entertain a complaint under this Regulation unless it is presented to the commissioner within the period of 6 months beginning on the date of the alleged contravention to which the complaint relates, or where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within that period, such further period, not exceeding 6 months from the expiration of the first-mentioned period, as the rights commissioner considers reasonable
It is not disputed by the Complainant that his claim was submitted outside the prescribed time limit nor has the Complainant provided any explanation other than a decision to part company with his legal team for the delay in submitting the claim.
This Court has, in a number of cases, considered the application of the test to determine whether exceptional circumstances apply. For example inJoyce Fitzsimons-Markey v Gaelscoil Thulach na nOg [2004] ELR 110(cited inKylemore Services Group/Home Fare Services Limited v Terrie Clarke(DEC-E2015-160) the Court stated:
“Exceptional Circumstances
- The Court must first consider if the circumstances relied upon by the applicant can be regarded as exceptional. If it answers that question in the affirmative the Court must then go on to consider if those circumstances operated so as to prevent the applicant from lodging her claim in time.
The term exceptional is an ordinary familiar English adjective and not a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course or unusual or special or uncommon. To be exceptional a circumstance need not be unique or unprecedented or very rare; but it cannot be one which is regular or routinely or normally encountered (see R v Kelly [1999] 2 All ER 13 at 20 per Lord Bingham CJ).”
- The Court must first consider if the circumstances relied upon by the applicant can be regarded as exceptional. If it answers that question in the affirmative the Court must then go on to consider if those circumstances operated so as to prevent the applicant from lodging her claim in time.
In this case it is for the Complainant to both explain the delay in lodging his appeal and to offer a justifiable excuse for the delay. Having regard the submissions advanced by the Complainant, the Court is of the view that he has not offered a justifiable excuse for the delay in all the circumstances. The appeal, therefore, fails.
The Court so determines.
Signed on behalf of the Labour Court
Louise O'Donnell
CC______________________
12 November 2018Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.