DWT2412

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00029169 (CA-00039210-001)

BACKGROUND:

The Worker referred his case to the Labour Court on 28 June 2023, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 7 February 2024. The following is the Decision of the Court:

DECISION:

Background to the Appeal

This is an appeal by Ms Claire Conlon (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00029169/CA-00039210-001, dated 23 May 2023) under the Organisation of Working Time Act 1997 (‘the Act’). The Adjudication Officer decided that the within complaint wherein the Complainant alleges she was not compensated for working on a Sunday was statute barred. The Complainant’s Notice of Appeal was received in the Court on 28 June 2023. The Court heard the appeal in Dublin on 7 February 2024 in conjunction with six other related appeals bearing the following reference numbers: ADE/23/76; PW/23/61; PW/23/62; TE/23/40; RP/23/1 (withdrawn during hearing) and ADE/23/77. Each of the foregoing (other than RP/23/1) is the subject of a separate decision/determination.

Brief Factual Background

The Complainant was employed by Inspire Wellbeing Company Limited by Guarantee (‘the Respondent’) as a Support Worker between 22 August 2016 and circa 30 March 2021, when she was deemed by the Respondent to have resigned from her employment. In mid-September 2016, the Complainant informed the Respondent that she had been diagnosed with an intellectual disability and required additional supports by way of reasonable accommodation to allow her to perform her job. The Respondent did put a number of supports in place in response to the Complainant’s request at that time.

In or around 11 April 2019, the issue of further reasonable accommodation for the Complainant arose. It was agreed by the Complainant and representatives of Management that the Complainant would avail herself of four weeks' paid annual leave to allow the Respondent to review her situation and to consider what additional reasonable accommodation could be provided to assist the Complainant. The Complainant was referred to an occupational health specialist on 20 May 2019 to establish what (if any) further accommodations were deemed necessary in her case. The Complainant remained on paid leave from her employment from April 2019 until 1 March 2020 on which date she commenced a period of annual leave that continued until 12 April 2020. As the Complainant did not submit a medical certificate to confirm that she was unfit to attend work and did not attend at her workplace her pay was ceased but was restored by the Respondent for the month of June 2020 to enable the Complainant to attend a meeting with Management to discuss what workplace adjustments she required and to attend with occupational health.

On 17 August 2020, the Complainant referred a total of eight complaints to the Workplace Relations Commission. By letter dated 30 March 2021, the Complainant’s Advocate requested that the Respondent cease any communications with the Complainant and direct any further communications directly to the Workplace Relations Commission. In or around the same time, the Respondent received a reference request from an alternative employer in the same sector in respect of the Complainant, which request included a section seeking information about the reasons why the Complainant had left the Respondent’s employment. The Respondent concluded on the basis of the foregoing, in the context of the Complainant’s two-year absence from the workplace, that the Complainant no longer wished to remain in its employment.

The Complainant referred a second complaint to the Workplace Relations Commission on 7 May 2021 in which she alleged that she had been victimised by the Respondent within the meaning of the Employment Equality Act 1998.

The Within Hearing

The Court received a number of written communications from the Complainant prior to the within hearing in which she outlined the nature of her disability and listed what she required of the Court by way of reasonable accommodation. The Court was very mindful of the Complainant’s circumstances and took the following steps in order to facilitate her in presenting her case: (i) the Court requested those in attendance in the courtroom from the Respondent’s side, other than those whose presence were absolutely necessary to deal with certain procedural matters, to wait nearby until their presence would be required; the Respondent’s team had no difficulty in acceding to the Court’s request and only Counsel, Solicitor and the instructing representative from the Respondent remained in the courtroom. The Complainant was present with her (non-legal) Advocate from the National Advocacy Service.

(ii) The Complainant had informed that Court that she has difficulty in processing complex information and requested the Court to allow for breaks in the proceedings and to take additional time to progress matters via discreet and manageable (to her) steps. The Court explained to the Parties at the outset how it proposed to accommodate the Complainant’s request in this regard while at the same time complying with fair procedures and its own Rules with a view to ensuring that both Parties had a fair opportunity to present its case to the Court. The Court took two breaks of approximately twenty minutes each during the hearing which lasted for a little over two hours. The Court also separated out the issues that arose for discussion and consideration at the outset of the hearing and advised the Parties of its proposed approach. Both Parties indicated they understood and accepted the approach outlined to them. The Court proceeded to follow the approach it had set out at the beginning of the hearing and made strenuous efforts at regular intervals, using plain English, to explain each element of the different issues with respect to which it required the Parties to set out their respective positions.

Preliminary Issue regarding Timing of Complaint

The Respondent submitted at the outset that the within complaint under the Act is statute barred and the Complainant had not attended the workplace after 11 April 2019 and therefore could not have a claim with respect to Sunday working after that date. The complaint having been referred to the Workplace Relations Commission on 17 August 2020, the cognisable period, in the Respondent’s submission, is 18 February 2020 to 17 August 2020. The Court enquired of the Complainant whether she had sought an extension of time to bring the within complaint during the hearing before the Adjudication Officer. She told the Court that she hadn’t. The Chairman then explained that in the circumstances the Court had no discretion to accede to any such application to extend time having regard to the decision of the Supreme Court in Stokes v CBS Clonmel.

Discussion and Decision

The Court accepts that the Respondent’s submission regarding the cognisable period relevant to the within complaint is correct. Furthermore, even if the Court had discretion – which it doesn’t in this case for the reasons stated above – to enlarge the time for bringing a claim under the Act, it would not avail the Complainant as she could not be permitted under the Act to go back in time earlier than 18 August 2019, by which date she had already been out of the workplace for four continuous months.

For the aforementioned reasons, the Court finds that the within claim under the Act is statute-barred. The decision of the Adjudication Officer is upheld and the appeal is dismissed.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
DC	______________________
09 April 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to David Campbell, Court Secretary.