Complainant

Respondent

Anonymised Parties

A Cleaner

A Cleaning Company

Act

Complaint 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-00020017-001

25/06/2018

The Complainant started her employment with the Respondent on 1st December 2018 following a transfer of undertakings. She had worked for the previous employer since June 2014. The Complainant’s employment was terminated on 9th July 2018.

The Complainant referred her complaint to the WRC on 25th June 2018. In her WRC Complain Form the Complainant claimed that she was required to work more than the maximum permitted number of hours.

This complaint is closely associated with another complaint made by the Complainant against the same Respondent. The other complaint is subject to report bearing reference ADJ-00016377. The complaints were heard together at a single adjudication hearing on 10th January 2018. Additional submissions were received from the parties on 17th, 22nd and 23rd January 2018.

The Complainant submits that she was required to work excessive hours.

In the “Complaint Specific Details” part of her WRC Complaint Form the Complainant submitted that she had worked 12 hours a week, but these hours were reduced to 6 hours a week in March 2017. The Complainant submitted that her hours of work were reduced despite her having a contract provided for 12 hours working week. She alleged that the Respondent put pressure on her by giving her extra work.

At the adjudication hearing, with the assistance of an interpreter, the Complainant outlined the details of her grievance. She submitted that her hours were reduced from 12 to 6 in March 2017. She submitted her complaint on 25th June 2018.

The Respondent submitted that the Complainant confirms in her submission form that she worked 6 hours a week which is below the maximum permitted working hours per week. The Respondent submits that the Complainant worked 6.5 hours per week. The Complainant was not required to work over the maximum permitted hours of work which is 48 hours per week. The Respondent submitted that it maintains records, as required under Section 25 of the Organisation of Working Time Act, 1997 to demonstrate that the provisions of the Act are being complied with. The Respondent submitted the the specific details or statement outlined in the complaint form does not match the Complainant’s complaint.

The Respondent further submitted that the reference to any potential complaint regarding hours of work in March 2017 has not been submitted before the expiration of the period of six months beginning on the date of the alleged contravention, and so does not fall within the statutory timeline.

The Complainant submitted her complaint to the WRC on 25th June 2018 under Section 27 of the Organisation of Working Time Act, 1997. She claims that she was required to work more than the maximum permitted hours.

Time limit

The Respondent argued that the complaint is statute barred having regard to the time limits for the making of the complaints as set out in the Workplace Relations Act, 2015 (the Act of 2015).

The complaint was referred to the WRC on 25th June 2018.

The Complainant, in her Complaint Form submitted that her claim relates to an alleged breach of the Organisation of Working Time Act, 1997 (the Act) which occurred in March 2017.

At the adjudication hearing, the Parties confirmed that the Complainant was on long-term sick leave and did not return to work until 10th July 2017. The Complainant confirmed at the hearing that “she thought” her hours were reduced in March 2017, as her work colleague’s hours were reduced at the time. She confirmed that there was no communication from the Respondent to that effect. The parties agreed that the Complainant’s hours of work were reduced following her return to work. Therefore, the date of the alleged breach was 10th July 2017 and not March 2017, as claimed by the Complainant. The six-month time limit within which the initiating complaint should have been referred to the Workplace Relations Commission expired, at the latest, 9th January 2018. The Complainant referred her claim to the WRC on 25th June 2018. The Complainant, therefore, lodged her complaint out of time.

The Act of 2015 provides, in effect, that the time for presenting a claim may be extended for reasonable cause shown for a further period of six-month but not exceeding 12 months from the date of the occurrence of the event giving rise to the claim.

The established test for deciding if an extension should be granted for reasonable cause shown is that formulated in Labour Court Determination DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. The test was set out 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.”

Therefore, I find that in order to achieve an extension to the time limit the Complainant must be able to show that there are reasons which both explain the delay and afford an excuse for the delay.

The Complainant was invited by the Adjudication Officer to advance the grounds in support of her application for an extension of time. The Complainant stated that she “didn’t know”. She confirmed that she was in contact with the Citizen Information Centre in January 2018.

The Labour Court in its determination DWT1244 Avery Weigh-Tronix v Kindsley held that “Ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for failure to bring a claim in time.”

Laffoy J. in Minister for Finance –v- CPSU and Others 2007 18ELR36 stated to the effect that ignorance of one’s legal rights cannot in law constitute a reasonable cause for not observing a statutory time limit.

On the basis of the foregoing, I find that the Complainant has not established that there was reasonable cause justifying her delay in referring her complaint.

For the above stated reasons, I find that the Complainant has failed to submit her complaint within the required time limit and no reasonable cause has been established to enable me to extend the time limit. Therefore, I do not have jurisdiction to hear the case.

Excessive hours- organisation of working time act- out of time- extension of time