Complainant

Respondent

Anonymised Parties

A complainant

A respondent

Representatives

 IBEC

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-00036176-001

15/05/2020

The complainant was employed with the respondent until 28 October 2020.  However, this complaint relates to alleged breaches of the Organisation of Working Time Act, 1997 that took place between 5/6 June 2019 and 18/19 November 2019.

Two preliminary points were raised by the respondent, the first as to the correct respondent, the second relating to time limits involved in this complaint.

Preliminary Issues - Correct respondent

The complainant submitted that he incorrectly named the respondent in his initial submission but notified the WRC of the correct respondent by way of email on 18 May 2020.

Preliminary Issues – Time-limits

The complainant submitted that the time-limits should be extended as there were exceptional circumstances during the six-month period envisaged by the respondent in that he received a redundancy notice and that his mother passed away in the early part of the six-month period outlined in the Act.

CA-00036176-001: Organisation of Working Time Act

The complainant submitted that a number of breaches of the Organisation of Working Time Act took place in relation to the minimum daily rest period took place between June and November 2019.

Preliminary Issues - Correct respondent

The respondent accepted that it was the correct respondent but noted that the incorrect respondent was indicated on the initial submission grounding this complaint.

Preliminary Issues – Time-limits

The respondent indicated that all but the last alleged breach of the Act occurred prior to the six-month time limit laid down in the Act.  It also submitted that none of the circumstances described as exceptional by the complainant had not been raised prior to the hearing.  Accordingly, it had only prepared defence to the allegations within the timeframe of six months.  Should the period be extended, the respondent sought to address those allegations in detail at an appropriate time.

CA-00036176-001: Organisation of Working Time Act

The respondent submitted that it raised the breaches of the Act with the respondent when they came to its notice and reorganised the scheduling of employees to address this and to avoid any future breaches.

Preliminary Issues - Correct respondent

Both parties agreed that an incorrect respondent was named on the original claim form.  The complainant outlined how matter was rectified by way of an email sent to the Workplace Relations Commission.  The email to the WRC citing the correct respondent was received at 19:57 on 18 May 2020, after normal business hours.  Accordingly, I deem the notification to have been received on 19 May 2020.  The respondent accepted that it was the correct respondent as the complainant’s employer.

Preliminary Issues – Time-limits

Section 41 (6) and (8) of the Workplace Relations Act state that:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

 (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The complainant outlined that he received a redundancy notice during the six-month period following the respondent’s notification to him of its breaches of the Act.  However, I note that the complainant indicated that this was one of a number of notices received during his employment and that he remained in employment with the respondent until 28 October 2020.  His observation that perhaps taking a complaint would impact upon his continuing employment is not borne out by the fact that he did take the complainant while still in the employment of the respondent and remained so for six months following the submission of his complaint.  I note that the complainant indicated that his mother passed away during the early part of this period, but I do not accept that this circumstance amounts to reasonable cause as outlined in the legislation as to why he didn’t submit his complaint in the following months.

Having regard to the circumstances put forward by the complainant at the hearing (for the first time) I am not satisfied that the failure to present the complaint was due to reasonable cause.  I therefore find that this complaint is out of time and, accordingly, that the complaint is not well founded.

CA-00036176-001: Organisation of Working Time Act

As this complaint is out of time, I find that the complaint is not well-founded.

My decision is that as this complaint does not come within the time limits prescribed in Section 41 of the Workplace Relations Act, this complaint is not well founded.

Correct Respondent, Time limits, Organisation of Working Time Act.