Complainant

Respondent

Parties

Philip  Bannon

Boxmore Plastics Ltd

Representatives

Mr. Pat Flannery SIPTU

Mr. Alastair Purdy, Alastair Purdy & Co. Solicitors

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-00041085-001

17/11/2020

The Complainant commenced employment with the Respondent on 4th September 1999. The Complainant was engaged as a “general operative” and was a permanent employee, with an average weekly wage of €350.00.

On 17th November 2020, the Complainant lodged the present complaint with the Commission. Herein, he alleged that the Respondent incorrectly calculated his annual leave entitlement. In denying the complaint, the Respondent submitted that the Complainant’s annual leave was calculated correctly at all times.

A hearing in relation to this matter was convened for, and finalised on, 15th October 2021. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

At the outset of the hearing, the Respondent raised a preliminary objection as to my jurisdiction to hear the complaint as presented. This matter will be considered prior to the substantive matter.

In circumstances whereby the relevant annual leave year had concluded in excess of six months prior to the lodgement of the complaint, it was put to the Complainant that the present complaint is statute barred for the purposes of the present Act.

In seeking to extend the cognisable period for the purposes of the present Act, the Complainant stated that the present matter was the subject of discussion at a local level and was, in part, the subject of a larger industrial relations complaint.

The Respondent submitted that the Complainant had not demonstrated that they were in any way prevented from referring the present complaint within the correct time period. In light of the same, they submitted that the cognisable period should not be extended, and the matter is statute barred.

In the matter of Waterford County Council v O’Donoghue DWT0963, the Labour Court stated that,

“The only leave year which is cognisable for the purpose of determining if an employee received his or her statutory entitlement is that prescribed by the Act itself, that is to say a year starting on 1st April and ending on 31st March the following year. While different arrangements may be put in place for administrative purposes, in determining if a contravention of the Act occurred that Court can only have regard to the leave allocated to an employee in the statutory period.”

In Singh & Singh Ltd and Guatam DWT0544 the Labour Court held, relying on the decision of Lavan J in Royal Liver v Macken [2002] 4 IR 428, that,

“From this judgement it is clear that where an employer fails to provide an employee with the requisite amount of paid annual leave the contravention of the act occurs at the end of the leave year to which the leave relates.”

Having regard to the above-mentioned authorities, it is apparent that the alleged contravention occurred on the end of the relevant leave year, or 31st March 2020. In circumstances whereby the present complaint was lodged on 17th November 2020, the matter was referred seven months and seven days after the alleged contravention.

Section 6(6) of the Workplace Relations Act 2015 provides that,

“…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.”

Section 6(8) provides that,

“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 established test for establishing such for reasonable cause is that formulated by the Labour Court determination of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338. Here 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.”

In the more recent matter of Leon Kinsella -v- Anson Friend DWT209, the Labour Court described the test to establish reasonable cause in the following terms

“It clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account.”

In the present case, I note no application for an extension of time in accordance with Section 6(8) was set out in the Complainant’s written submission. Notwithstanding the same, the Complainant’s representative made an oral application for an extension of time based on the fact that this complaint was part of a wider industrial relations issue between the parties and that the matter was being discussed at local level.

In the matter of Dublin City Council -v- Skelly DWT212, the Labour Court held that,

“…a complainant’s decision to delay referring a statutory complaint to the Workplace Relations Commission beyond the six-month time limit provided for generally in Section 41 of the Workplace Relations Act for the purposes of exhausting an alternative means to resolve their dispute does not constitute reasonable cause for the delay”

From the authorities cited above, it is clear that the Complainant must firstly explain the reason for the delay. In this regard, I find that the rationale advanced by the Complainant does not adequately explain the delay. If the matter was subject to a wider industrial relations complaint, clearly the complaint was aware of the issue and had no barrier to submitting his own personal complaint in good time.

Having regard to the foregoing, I find that the Complainant has failed to demonstrate “reasonable cause” as required by the Act. As it is common case the no breaches of the Act occurred within six months of the referral of the complaint, I find that the complaint is not well-founded.

The complaint is not well-founded and consequently the Complainant’s application fails.

Extension of Time, Industrial Relations