ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00017130

Parties:

	Complainant	Respondent
Anonymised Parties	A fisherman	A fishing company

Complaint(s):

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-00022146-001	25/09/2018

Date of Adjudication Hearing: 06/02/2019

Workplace Relations Commission Adjudication Officer: Shay Henry

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or section 27 of the Organisation of Working Time Act, 1997following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint).

Background:

The complainant alleges he did not receive holiday pay. The respondent says the complaint is out of time and that in any event he did receive holiday pay.

Summary of Complainant’s Case:

The complainant worked for the respondent from September 2017 until the end of February 2018, a total of 25 weeks during which he never received holiday pay. He called to the respondent’s office during July and August2018 but the office was closed. When he contacted the respondent in September he told him that he had been paid for time he didn’t work and that this was his holidays.

Summary of Respondent’s Case:

Preliminary Issue

The claim is outside of the time limits. The respondent denies that the office was closed during July and August and there would have always been someone there.

Substantive Issue

The complainant was paid a basic salary of €351 per week whether or not the boat was fishing. When fish were caught an additional bonus was paid. The terms of employment specify that if there are unforeseeable circumstances when it is not possible to work this period will incorporate the annual leave entitlement.

Findings and Conclusions:

Preliminary issue.

The Respondent has submitted that no reason has been provided to adequately explain why the Complainant had not lodged a complaint within the six month time frame as provided for under the under Organisation of Working Time Act, 1997. The Act 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.

(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.

In Cementation Skanska v Carroll DWT0338 28/10/2003, the Labour Court considered “reasonable cause' and found as follows;

“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 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 to 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.”

In Gaelscoil Thulach na nOg v Joyce Fitzsimons–Markey (EET 034), it stated: “To be exceptional, a circumstance need not be unique or unprecedented, or very rare, but it cannot be one which is regularly, or routinely encountered

The complainant in this case the complainant has given as reason for the delay that the office wasn’t opened and summer holidays came in. I note that the respondent has given evidence that the office was open during the summer and the complainant did not specify dates on which he called to the office. Neither did he phone the office.

As the complainant has not provided persuasive exceptional circumstances, that both justify and explain the delay I find that I have no jurisdiction to investigate the complaint.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

The complainant has not provided reasonable cause why the period of six months, within which a claim for redress must be made as required under Section 27(4) the Act, should be extended to twelve months and accordingly, I find that I have no jurisdiction to investigate the complaint

Dated: 10/04/19

Workplace Relations Commission Adjudication Officer: Shay Henry

Key Words:

Time limits – reasonable cause – holiday pay claim