Complainant

Respondent

Parties

Joseph  George

Crowne Plaza Tifco Hotels

Representatives

National Association of Housing for the Visually Impaired

IBEC

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-00045580-001

07/08/2021

The complainant is a part time casual employee in Crowne Plaza, Hotel, Santry.

He submits that as per his work attendance records of 2020, he worked seventy-two hours prior to the public holidays in May, eighty-eight hours prior to June and 192 hours (of which 128 hours during 5-week period) prior to August bank holiday.

Subsequent to repeated email requests, the respondent finally paid only 6.1 hours public holiday pay on April 1st, 2021, though the complainant believed he should be paid for 24 hours wages as he had worked more than 40 hours prior to each public holiday.

His employer stated that they he had been paid in full, which according to his calculation based on the Statutory Instrument Number 475/1997 is not correct. He also feels that he was historically underpaid holiday pay in previous years.

By way of a preliminary matter, the respondent submits that this claim has not been made within the statutory time limits. The claim under the Organisation of Working Time Act was lodged by the complainant on August 7th, 2021.

The date of the last alleged contravention was December 28th, 2020. This is over seven months from the date of the last alleged contravention. Section 27(4) of the Organisation of Working Time Act, 1997 states the following in respect of time limits:

“(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.”

Section 41 (6) and (8) of the Workplace Relations Act 2015 similarly state:

“(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 Organisation of Working Time Act, 1997 and the Workplace Relations Act 2015 clearly stipulate that the time limit runs from the date of the alleged contravention. The respondent submits that there is no discretion under the Act for an Adjudication Officer to further extend the time limit past the 6-month period, unless “reasonable cause” is proved.

The Acts refer to “reasonable cause” as permitting an extension of the statutory time-limits. The tests applied by the Labour Court for extensions of time under the Organisation of Working Time Act have been well established. The respondent relies on the case of Cementation   Skanska v Carroll, DWT0338 where the Court articulated the test by stating:

“It is the Court’s view that in considering if reasonable cause exists, it is for the complainant 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 complainant at the material time. The complainant’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 complainant 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 complainant has a good arguable case.”

The Court’s explanation in Cementation Skanska, drew heavily from the High Court case of O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301 where Costello J. held that the test is an objective one and pointed out that a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings. Costello J stated:

“The phrase 'good reason' is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the Court should not extend the time merely because an aggrieved plaintiff believed he/she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay”.

The complaint in this case is quite clearly out of time and thus it is submitted that the Adjudication Officer does not have the requisite jurisdiction to hear this claim. And nor can he/she proceed to hear the substantive case until this matter is determined.

Without prejudice to the foregoing, in his claim form to the WRC, the complainant alleges that he has not received his Public Holiday entitlements under the Organisation of Working Time Act, 1997.

The respondent disputes this claim in its entirety and the working time records    demonstrate that the complainant has received the correct entitlements.

The complainant has referred to alleged underpayments    of his Public Holiday entitlements in May 2020, June 2020, and August 2020 Public Holidays and has alleged that he “should be paid for 24 hours wages”.

In further correspondence sent to the WRC by the complainant on August 19th, 2021, he has alleged that he was entitled to the following Public Holiday entitlements:

Easter 2020: 0 hours 36 minutes, May 2020: 1 hour 43 minutes, June 2020: 3 hours 19 minutes, August 2020: 4 hours 55 minutes, October 2020: 3 hours 19 minutes, Christmas 2020: 3 hours 19 minutes, St Stephens Day 2020: 3 hours 19 minutes

Whilst he is still an employee of the respondent, the complainant has not attended work for the respondent since September 29th, 2020 and is the subject of an ongoing disciplinary procedure relating to same.

Detailed submissions and supporting material were submitted in relation to the specific complaint. The complainant’s entitlements can be summarised as follows:

-        May Public Holiday entitlement: €26.32 (2 hours and 12 minutes)

-        June Public Holiday entitlement: €41.17 (3 hours and 26 minutes)

-        August Public Holiday entitlement: €58.59 (4 hours and 53 minutes)

-        October Public Holiday entitlement: €28.54 (2 hours and 23 minutes)

Therefore, the complainant’s total entitlements in respect of the four Public Holidays amount to €154.62 (12 hours and 52 minutes). The complainant was paid for his entitlements in two instalments. The first payment of €73.37 (6 hours and 6 minutes) was made on March 22nd, 2021, with the second payment of €93.22 (7 hours and 45 minutes) made on August 23rd, 2021.

The amount paid to the complainant in respect of his Public Holiday entitlements totaled €166.59 (13 hours and 52 minutes) despite his actual entitlement only being €154.62. This represents an overpayment of €11.97 (0 hours and 59 minutes).

This overpayment is due to the fact that the respondent ended up paying the complainant exactly what he asked for in respect of the Easter (0 hours 36 minutes), May (1 hour 43 minutes), June (3 hours 19 minutes), August (4 hours 55 minutes) and October (3 hours 19 minutes) Public Holidays, despite this being over and above what he was entitled to.

As will be seen from the submissions above the complaint was submitted on August 7th, 2021 and relates to a number of payments the complainant says he was due in 2020.

The respondent has set out its case in respect of the actual payments and says that no monies are outstanding to the complainant.

Despite that I must address the issue of jurisdiction as this has been raised by the respondent as a preliminary matter. 

The date of the last alleged contravention was December 28th, 2020, which is over seven months prior to the submission of the complaint.

The complainant has not worked since September 2020 and the circumstances related to this were not relevant to the hearing and were not heard. What is relevant is why no complaint was made about the alleged breaches at some stage before August 2021.

The respondent has set out the test which applies in respect of the reasonable cause exemption, in particular the dicta above in Cementation Skanska v Carroll, and it might be summarised as the ‘explain and excuse’ test.

Both elements are critical and any claim for an extension of time must meet both criteria; it must both explain the delay and afford a credible excuse for it.

In the event the complainant did neither and therefore his complaint is not within jurisdiction. While it is beside this point that the respondent also provided an effective rebuttal of the basis for any complaint it is nonetheless worth recording that it did so.

The conduct of the hearing (which was online) was somewhat impacted by minor technical problems with the complainant’s connection, although his accompanying person and representative in the same room could be heard clearly.

But both parties were asked and confirmed at the end of the hearing that they were satisfied that they had a full opportunity to outline their case.

For the reasons set out above Complaint CA-00045580-001 is not well-founded.

Public Holiday pay.