Complainant

Respondent

Parties

Mikolaj  Grzeskowiak

Glanmire Supermarkets Limited

Representatives

  Self - Represented

David Gaffney, Padraig J. Sheehan Solicitors

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-00053399-001

11/10/2022

 The Complainant was an Employee of the Respondent Company from  28  October 2012 to 23 November 2020 in the position of Baker. The Complainant received a Contract of Employment on the 16 October 2012 and was paid an annual salary of €30,000 gross based on working 45 hours per week. The Complainant asserts he was never paid a Sunday premium and this omission  contravened both the Organisation of Working Time Act 1997 and his contract of employment.

The Respondent denies the Complaint and further raises a preliminary issue that the complaint is out of time.

Preliminary Issue – Out of Time.

The Respondent submits that the  complaint  submitted by the Complainant is statue barred as it was submitted more than six months after the claim arose. According to Section 27 of the Organisation of Working Time Act, 1997, any claim must be brought within 6 months within the alleged offence or noncompliance. In this case, the claim was submitted beyond the statutory time limit making it illegible for consideration on the basis that the Complainant has not shown reasonable cause for the late submission of same. In the circumstance the Respondent submits that the complaint should be dismissed for the above reasons, as otherwise the Respondent will suffer prejudice, which has clearly already occurred

The Complainant said that his reason for a late submission was that he had trusted his employer and did not realise until late after leaving that he could pursue a complaint for a Sunday premium. The Complainant accepts that he spoke  with a solicitor regarding this issue  within the six-month period since leaving the Respondent company.  

The Complainant stated that when he viewed his contract after leaving the employment, he saw that it said that if he worked Sundays he would be entitled to an extra day off that week. He believed this to mean that he would have an extra days pay, if not an extra  day off in lieu.

Mr Jason O’Callaghan, Manager with the Respondent gave evidence that the he believed the Complainant had misconceived his entitlement. He understood the literal meaning of the provision to be that normally employees would have Sunday as a day off, but that if the Complainant were to work on a Sunday, he would have two weekdays off, not an extra day on top of the 45 hours he was contracted to work.  

Preliminary Out of Time Issue:

In deciding the Complainant’s case, I must first establish whether there is merit in the complainant’s application to extend the time limit for submission of his claim.

Section 41 (1) of the Workplace Relations Act, 2015 provides:

(1)   An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee's employer has contravened a provision specified in Part 1 or 2 of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer.

Subsections (6) and (8) further provide the regulation on time limits for submission of claims and whether a time limit can be extended for a further six months:

(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 applicable test in relation to establishing if reasonable cause has been shown for the purposes of granting an extension of time is that formulated by the Labour Court in the case of Cementation Skanska v Carroll, (DWT 38/2003) as follows; 

“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 this instant case the Complainant finished work at the Respondent company on 18 October 2021 and forwarded  his concerns to the  WRC for inspection on 11 July 2022. He subsequently forwarded the complaint for adjudication on 11 October 2022, in the eleventh month from termination of his employment. The Complainant’s reason for looking for an extension was that he trusted the company on the performance of his contract. He also acknowledged that he had been in receipt of legal advice on the matter. Having considered the evidence put forward by the Complainant in applying for an extension of time, I conclude that his argument does not offer a reasonable  explanation for the delay, as envisaged by the Labour Court in  Cementation Skanska.

I find that the Complainant has not established that there was reasonable cause justifying his delay in referring his complaint to the Workplace Relations Commission, therefore his complaint fails for being out of time.

I find that the Complainant has not established that there was reasonable cause justifying his delay in referring his complaint to the Workplace Relations Commission, therefore his complaint fails for being out of time.

Out of Time, Sunday Premium.