Complainant

Respondent

Parties

Aoife  Bell-Brew

Cpl

Complainant

Respondent

Anonymised Parties

Representatives

  n/a

Mark Comerford 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-00054944-001

09/02/2023

The Complainant is seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 and has submitted that she did not receive her appropriate annual leave entitlement (CA-00054944-001-001).

The Complainant commenced employment with the Respondent as a temporary agency worker on the 29th November 2016. The Complainant was paid €793.65 gross (€620.98 net) per week for 37 hours worked. The Complainant was temporarily assigned as a clerical officer to a public body until the 14th February 2020 wherein she was made permanent as of from the 17th February 2020.

The Complainant submitted that she was informed by a colleague, in or about June 2022, that as a temporary agency worker they were entitled to the same annual leave as permanent staff members. The aforementioned colleague had been compensated for the miscalculation of leave entitlement.

The Complainant contacted the Respondent on the 23rd June 2022 and the Respondent responded on the 12th July 2022 that as she was no longer an employee with the Respondent she was not entitled to be compensated for annual leave.

The Complainant stated that due to personal reasons she was not able to lodge a complaint until 2023 but believed she was entitled to compensation for the miscalculation of leave.

This Complaint was received by the Workplace Relations Commission on the 9th February 2023.

The Respondent accepts the background facts and timeline in relation to the Complainants employment.

The Respondent acknowledges that upon being made aware of the discrepancies in the allocation of annual leave took the appropriate steps to rectify that situation. However, regardless of this acknowledgement the Respondent raised a preliminary issue that this complaint is manifestly out of time as the Complainant ceased employment with the Respondent on the 14th February 2020.

It is the Respondents submissions that in the first instance this Complaint is statute barred.

In the circumstances of this matter, I have carefully listened to the evidence tendered in the course of the hearing by both parties.

In relation to the preliminary issue raised by the Respondent, Section 27 (4) of the Organisation of Working Time Act, 1997 provides:

(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.

The Labour Court, in Cementation Skanska v Carroll DWT0338 28/10/2003, considered the issue of “reasonable cause” in the context of a similar provision to S.41(8) contained in the Organisation of Working Time Act, 1997 Section 27(5):

The Labour Court stated:

“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 and 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 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.”

I accept the bona fides of the Complainant and that she was facing challenging personal circumstances. However, even accepting that “reasonable cause” existed the Complainant lodged this Complaint outside the 12 month period.

In the circumstances of this case, I find this Complaint is out of time.

I find that the Complaint (CA-00054944-001) made pursuant to section 27 of the Organisation of Working Time Act, 1997 is not well founded.