SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
SINGH & SINGH LIMITED TRADING AS GAYLORD TANDOORI RESTAURANT
(REPRESENTED BY LIAM KEANE SOLICITORS)
- AND -
NITIN GUATAM, BALBEER SINGH, AND MANOHAR SINGH
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioner's Decision R-033879MA-05/GF.
2. The claimant's were employed by the Company from various dates in 2002 and 2003. The claimants left the Company in August of 2004. In a letter dated 21st April, 2005, the Union on behalf of the claimants presented a complaint to a Rights Commissioner under the Organisation of Working Time Act, 1997 in respect of the claimant's holiday entitlements. A hearing took place on the 2nd August 2005. The Rights Commissioner issued his decision on the 15th August, 2005 as follows:
"I believe that complaints must be presented to the Rights Commissioner within 6 months of the date of contravention of the transgression and this did not occur in this case. This complaint is clearly out of time and I decide for the respondent".
The Union appealed the Rights Commissioner's Decision on the 11th September, 2005 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the grounds that the claimants concerned were not aware of their legal entitlements prior to joining the Union. The Union argues that the circumstances surrounding this dispute should allow for the claimants grievances to be heard objectively. The reason for the late application was due to the fact that the Union were in process with the employer locally. A Labour Court hearing took place on the 16th November, 2005. The following is the Court's Determination.
The claimants were employed by the respondent from various dates in 2002 and 2003, until 18th August 2004 in the case of the first and third named claimants and 28th August in the case of the second named claimant. By letter dated 21st April 2005, SIPTU, on behalf of the claimants, presented a complaint to a Rights Commissioner under the Organisation of Working Time Act 1997(the Act) in respect of the claimant’s holiday entitlements. The complainant was considered by the Rights Commissioner who found that the complainant had been presented outside the time limit prescribed by Section 27(4) of the Act. The Rights Commissioner accordingly held that he lacked jurisdiction to investigate the claims.
In this appeal the Solicitor for the respondent asked that the appeal be dismissed as the complaints to which it relates are statute barred. In these circumstances the Court must first consider if the complaints were presented outside the time limit prescribed by Section 27(4) of the Act. If the Court finds that the complaints were presented out of time it can then proceed to consider if the time limit can be enlarged pursuant to section 27(5) of the Act.
Section 27(4) of the Act provides as follows:
- “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.”
The complaints herein relate to the respondent’s alleged failure to provide the claimants with paid annual leave and public holidays in accordance with Sections 19 and 21 of the Act. While the Union made reference in the course of it's submission to alleged breaches of the Act in respect to working hours and breaks, the letter of referral to the Rights Commissioner of 21st April makes no mention of any such transgressions. In these circumstances it appears that complaints in relation to working hours and rest breaks were never formally presented to the Rights Commissioner and accordingly are not cognisable in this appeal.
In determining the relevant dates on which the alleged contraventions of the Act occurred the Court has had regard to the judgment delivered by Mr Justice Lavan inRoyal Liver v Macken and Others High Court Unreported November 2002. From this Judgment 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. Section 2 of the Act provides that a leave year commences on 1st April and ends on the 31st March next following. Where employment cesses during a leave year an employer is required to pay the employee cessor pay in compensation for any outstanding annual leave. Failure to do so constitutes a contravention of the Act which occurs on the date on which the employment terminates. It further appears from the decision inRoyal Liver v Mackenthat except in cases where a employer expressly elects to provide another form of benefit in respect of a Public Holiday, an employee is entitled to a day off with pay on that day and the date of any contravention in that regard is the date of the Public Holiday in question.
Arising from the foregoing the dates of the contraventions to which the complaints herein relate are as follows:
�In so far as the complaints relate to the failure of the respondent to provide cessor pay due under section 21 of the Act, the date of contravention was 18th August 2004 in the case of the first and third named claimants and 28th August in the case of the second named claimant.
�In so far as the complaint relates to the failure to provide annual leave in the leave year 2003- 2004, the date of contravention was 31st March 2004.
�In so far as the complaint relates to a failure to provide annual leave in the leave year 2002-2003 the date of contravention was 31st March 2003
�In so far as the complaints relate to failure to provide a paid day off or other benefit in respect of a Public Holiday the date of contravention was the date of the Public Holiday to which the contravention relates. The last such Public Holiday for present purposes was the first Monday in August 2004.
The complaints herein were presented to the Rights Commissioner by letter dated 21st April 2005. The latest of the time limits governing these complaints would have expired on 17th February in the case of the first and third named claimants and on 27th February in the case of the second named claimant. According these complaints were presented outside the time limit prescribed by section 27(4).
In these circumstances the Court must consider if theses complaints can be saved by enlarging the time limit pursuant to Section 27(5) of the Act, which provides as follows:
- “ Notwithstandingsubsection (4), a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to insubsection (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”.
- 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.
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 claimant has a good arguable case.
The claimants are of Indian nationality. They have limited knowledge of Irish labour law and have varying levels of competency in the English language. The claimants sought advice from SIPTU in January 2005 which was within six months from the date on which their employment terminated. The Union Official formed the view that the claimant’s grievances could be resolved in discussions with the respondent and sought a meeting to that end. The Official did not inform the claimants of the time limit in which their claims would have to be presented. A meeting was subsequently held between the Union and the respondent on 28th February 2005, by which date the time limit had expired. Further correspondence ensued between the Union and the respondent which failed to advance the resolution of the dispute. The Union then referred the complaints to a Rights Commissioner on 21st April 2005, approximately 9 months after the last contravention to which the complaint relates.
In considering this aspect of the case the Court is of the view that the claimants lack of familiarity with Irish employment law and other matter relating to their status as migrant workers were a significant factor in causing the delay in presenting these claims. Moreover, the claimants did seek advice from a Trade Union within six months of the termination of their employment. They were entitled to believe that their complaints would be properly processed and that nothing more was required of them. While the Union Official may have been remiss in not presenting a holding claim on behalf of the claimants and may have been over optimistic in his belief that the issues could be resolved in an industrial relations context, it would not be reasonable to fix the claimants with responsibility for what subsequently occurred.
The Court is satisfied that in the circumstances identified reasonable cause has been shown which both explains and excuses the delay. The Court is further satisfied that the are no countervailing factors, such as prejudice to the respondent arising from the delay, which would make it unjust or oppressive to extend the time and allow these complaints to be determined on their merits. Accordingly the Court determines that the time limit for the bringing of the complaints herein be extended by a further period of 12 months. Hence, all complaints relating to contraventions of the Act which occurred on or after 22nd October 2003 are deemed to be in time.
Substance of the case
(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.
The first named claimant Mr Nitin Guatam gave evidence in which he told the Court that he was given 2 weeks holidays in late 2004 for which he was paid. On his return Mr Singh (the Director of the respondent) demanded repayment of the wages that he had received in respect of the holiday period. Mr Guatam told the Court that he had refunded the amount in question in cash. Mr Guatam also told the Court that this was the only period of leave which he had received during his employment with the respondent, and that he had not been provided with time off or payments in respect of Public Holidays.
The witness confirmed in cross-examination that he had taken one day per week off work to attend college. He denied, however, that he had been paid in respect of the time in question or that it was treated as holidays by agreement with the respondent. Mr Gautam commenced employment with the respondent on 14th September 2002 and left on 18th August 2004.
The second named claimant, Mr Balbeer Singh gave evidence. Mr Singh was employed by the respondent from 16th April 2003 until 28th August 2004. Mr Singh told the Court that he did not receive any annual leave during the currency of his employment nor did he receive any payments in respect of holidays on the termination of his employment. He further told the Court that he worked on all Public Holidays falling during his employment but did not receive either time off or additional payments in respect of those Holidays.
The third named claimant, Mr Mamohar Singh did not attend the hearing for reasons which were explained to the Court. However, the Solicitor for the respondent agreed that since Mr Singh’s circumstances were identical to those of the other claimants his appeal could be considered by the Court on the basis of the written submissions made on behalf of all claimants.
Evidence on behalf of the respondent was given by Mr Singh who is a Director of the respondent. Mr Singh told the Court that an informal arrangement existed with the claimants by which they took holidays by way of casual days off. He claimed that they were paid in respect of all such time off. In the case of Mr Guatam, Mr Singh denied that the respondent had sought or received reimbursement of payments in respect of the two weeks holidays which Mr Guatam had taken in 2003.
It was Mr Singh’s evidence that records regarding annual leave and time off in lieu of Public Holidays were recorded in a book kept at the claimant’s place of work. A Mr Sharma, who was an original claimant in these proceedings and who acted as manager for the respondent, maintained the records. In his direct evidence Mr Singh said that Mr Sharma had subsequently destroyed this book with the result that the respondent was left without records of the dates on which the claimants received the disputed leave. However in response to questions from the Court Mr Singh said that the book had gone missing from the respondent’s premises and he could not account for its whereabouts. Mr Singh said that he had looked at this book regularly and noted the records which it contained in relation to holidays and hours of work.
Mr Singh confirmed in evidence that there was not time recording system in place and that employees, including the claimants, were not issued with pay-slips.
Maintenance of Records
Section 25 of the Act provides as follows:
(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.
(2) [not relevant]
(3) [not relevant]
Regulation were subsequently made pursuant to Section 25(1) of the Act entitled Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001, S.I. No. 473 of 2001. Even if the Court were to fully accept the veracity the evidence adduced by the respondent it is clear that records were not maintained in compliance with these Regulations. However, the Court is not satisfied, as a matter of probability, that any form of records were maintained which approximated to what is required by the Regulations. In these circumstances the respondent bears the burden of proving that the relevant provisions of the Act were complied with in relation to the claimants rests with the respondent.
Having evaluated all of evidence adduced the Court finds that the respondent has failed to convince it, as a matter of probability, that the claimants did receive their statutory entitlement to paid holidays. Accordingly the Court is satisfied that the complaints herein are well founded. The Court therefore holds that the Act was contravened in respect of the claimants in the following respects.
Scope of this Determination.
Having regard to the extension of time granted in this case the following contravention of the Act are encompassed by this determination:
�Failure to provide cessor pay to each of the claimants in respect of the leave year commencing 1st April 2004 up to the date on which the claimants’ employment terminated (5 months calculated at 1/3 of a weeks leave for each month = 1.66 weeks)
�Failure to provide annual leave in the leave year commencing 1st April 2003 and ending on 31st March 2004. (4 weeks)
�Failure to comply with Section 21 in respect of all Public Holidays which occurred in the period commencing on 22nd October 2003 and the date on which the claimants’ employment terminated (9 days )
�Contraventions which occurred prior to 22nd October 2003 are outside the time-limit as extended and are statute barred.
Where a claimant has not received his or her statutory period of leave a claim cannot be made nor can an award be formulated as being for payment in lieu of holidays. Article 7 of the Working Time Directive expressly prohibits the payment of an allowance in lieu of annual leave except where the employment relationship has ended. In such cases the proper award should be in the form of compensation for loss of annual leave. Such an award need not be limited to the value of the lost holidays.
The obligation to provide annual leave is imposed for health and safety reasons and the right to leave has been characterised as a fundamental social right in European Law (see comments of Advocate General Tizzano inR v Secretary of State for Trade and Industry, ex parte Broadcasting, Entertainment Cinematography and Theatre Union  IRLR 559which were quoted with approval by Lavin J in the Royal Liver case). InVon Colson & Kamann v Land Nordrhein – Westfalen  ECR 1891the ECJ has made it clear that where such a right is infringed the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.
The Court must therefore consider the economic value of the leave withheld from the claimants and must then consider what additional compensation is appropriate.
There are no records available of the hours worked by the claimants. Their evidence was that their standard working hours were from 11.30am until 3pm and from 5pm until the restaurant closed, six days per week. The restaurant normally closed at around 11.30pm during weekdays and at 1pm or 1.30 pm at weekends. This indicates that the claimants’ normally worked a 10 hour day and that a normal week consisted of 6 days.
It is noted that the claim made on behalf of the claimants by the Union was computed on the basis of an 8-hour working day. This is not in accordance with the evidence given by the claimants and clearly under estimated their entitlements.
However the Court has computed the economic value of the holidays at issue by reference to the maximum weekly hours permissible under the Act and by applying the National Minimum Wage to those hours. In the case of Public Holidays the actual standard working day of 10 hours is used in the calculations. The total entitlement of each of the claimants in the period encompassed by the complaint, as calculated on this basis and expressed in hours, is as follows:
1.66 weeks x 48 hours per week = 79.68
4 weeks x 48 hours per week = 192.00
9 days x 10 hours per day = 90.00
Total in hours = 361.68
The National Minimum Wage in the period covered by this Determination was €6.35 per hour up to 1st May 2005 when it was increased to €7.65. Thus, the economic value of 30 hours due in respect of Public Holidays and 79.68 hours due as cessor pay is to be calculated at €7.65 per hour and the remainder is to be calculated at €6.35 per hour. In the result the economic value of the leave withheld is €2439.25
Having regard to the economic value of the leave in question and the need to provide a remedy which is proportionate, effective and dissuasive the Court awards each of the claimants compensation in the amount of €3,000.
Signed on behalf of the Labour Court
5th December, 2005______________________
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.