Complainant

Respondent

Anonymised Parties

Credit controller

Property Management Company

Representatives

Fingal Citizens Information Service

Did not attend.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023175-001

05/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00023175-002

05/07/2018

The complainant commenced employment with the respondent as a credit controller in March 2013.

She worked a 4-day, 32-hour week. Her gross pay was €452 per week.

She was made redundant on 16 October 2017

She submitted her complaints to the WRC on the 5 July 2018.

CA-00023175-001: Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant was asked and undertook an extra day’s work each Friday for the period October 2013 – June 2014. The respondent advised her that they were rolling days in that she could add them to her existing statutory entitlement each year and that they would carry over. She states she is due 20 days in lieu of these Fridays worked.

The complainant maintains that for the leave year 1/4/2016-31/3/2017, she only took 13 days leave and that she is owed 7 days paid leave.

CA-00023175-002:Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

The complainant has worked as a credit controller with the respondent since March 2013.

Neither at that time or at any point up to her redundancy in October 2017 did she receive a copy of her terms and conditions of employment as required by section 3 of the Terms of Employment (Information) Act, 1994.

CA-00023175-001 . Complaint under section 27 of the Organisation of Working Time Act, 1997.

The respondent did not attend and rang during the course of the hearing to advise that she had mistaken the date. The complainant was unwilling to agree to an adjournment.

CA-00023175-002. Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

The respondent did not attend. She telephoned midway through the hearing to advise that she mistaken the date of the hearing. The complainant was unwilling to agree to an adjournment.

CA-00023175-001: Complaint under section 27 of the Organisation of Working Time Act, 1997.

There are two elements to this complaint.

The first relates to her complaint that she is owed 20 additional days leave, over and above her statutory entitlement, carried over since 2014 and based on an agreement with her employer. My jurisdiction extends to identifying if the statutory entitlement to 20 days was breached.

The second element is that the complainant states that she is due 7 days leave in respect of the leave year 2016-2017. Her employment ceased on 6 October 2017. The complaint was lodged on 5 July 2018. She is outside the time limit demanded of section 27(4) of the Act.

Section 27(4) of the Act states

“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”.

Reasonable cause for extension of time limits.

The complainant has requested an extension of the time limits applicable under the Act on the basis of reasonable cause.

Section 27(5) of the Act states

“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.”

In relation to extending the time limits in respect of the 7 days leave owed for the 2016-17 statutory leave year, the complainant states she was unaware of the time limits. The complainant advises that she instructed her solicitor to lodge a complaint with the WRC in November 2017. He did not do so.

The test for determining reasonable cause was formulated in Determination DWT0338 –Cementation Skanska and Carroll in the following terms: -

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant 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 claimant 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 claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

The written evidence of the complainant is that she was in discussions and dialogue with her Solicitor from November 2017 to May 2018. Correspondence indicates that the only matter concerning leave was the twenty extra days, days additional to her statutory entitlement.

Her solicitor emailed her a complaint form for submission to the WRC on 4 May 2018. She submitted 2 separate complaints under different statutes on 25 May 2018. The complaint under the Act of 1997 was not lodged until 5 July 2018. The case for payment for 7 days claimed in respect of the 2016-17 leave year was made at the hearing on 26/11/2018.

Given the delay between receipt of the WRC form on 4 May with the advice to proceed with her complaint and the lodgement of the complaint on 5 July, I do not find that the complainant meets the test laid out in Skanska for an extension of the time limits. I do not have jurisdiction to hear this complaint.

CA-00023175-002: Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

The complainant’s employment was terminated on the 16 October 2017. The complaint was submitted to the WRC on 5 July 2018.

Section 7(3) of the 1994 Act states

“A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the period of 6 months beginning on the date of the termination of the employment concerned. “

Section 41 (8) of the Workplace relations Act, 2015allows for a six-month extension of the time limits where the adjudicator is satisfied that there was reasonable cause for the failure to meet the time limits.

The test for determining reasonable cause was formulated in Determination DWT0338 –Cementation Skanska and Carroll and required the complaint to both explain and excuse the delay.

The complainant’s solicitor emailed her a copy of a WRC form on the 4 May and advised her to proceed with 2 separate complaints. The complainant’s solicitor in correspondence with the respondent condemns the absence of terms and conditions of employment. So it is difficult to accept that the complainant’s inactivity between the period of 4 May (already outside of the time limits for submission of a complaint) and the 5 July, means that the complainant had no knowledge of this potential breach of the Act of 1994 or the time limits within which a complaint under this Act must be lodged.

I do not find this set of circumstances meets the test laid out in Skanska.

In accordance with section 7(4) of the Act of 1994, I do not have jurisdiction to hear this complaint.

CA-00023175-001 . Complaint under section 27 of the Organisation of Working Time Act, 1997.

I do not have jurisdiction to hear this complaint.

CA-00023175-002: Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

I do not have jurisdiction to hear this complaint.

Time limits.