SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001
ST. KILLIANS DEUTSCHE SCHULE
(REPRESENTED BY ST. KILLIANS DEUTSCHE SCHULE)
- AND -
Chairman: Ms Jenkinson
Employer Member: Mr Doherty
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioner's decision PT21185/04/DI
2. The dispute before the Court concerns a claim by the worker for no less favourable treatment in terms of pay than a named comparable full-time employee. The sum claimed is the difference between the ‘old’ rates, the hourly rate paid to part-time teachers, and those affected by the enactment of the Protection of Employment (Part-time Work) Act, 2001.
The School (The Respondent) paid the complainant, who was employed as a part-time teacher, from September, 2001 – June , 2002, the rates established by the Department of Education and Science for Part-time and Substitute teachers.
In 2004 the Department agreed a new hourly rate applicable retrospective to 21st December, 2001. The Complainant wrote to the School seeking the arrears between the old rate and the new rate from 21st December, 2001 to June 2002. His claim was rejected.
The dispute was referred to a Rights Commissioner for investigation. The Rights Commissioner’s Decision issued on the 23rd March, 2005, as follows:
“Decision – Jurisdiction
While I accept that the Department's circular refers to the new rates of pay for part-time teachers being retrospective to the date of enactment of the Act, the Act itself is specific in the timeframe that is allowed for submitting complaints.
I find that I have no jurisdiction to hear Mr Mannion’s complaint as it was submitted outside the time limit allowed for in the Protection of Employees (Part-Time Work) Act, 2001.”
The Complainant appealed the Decision to the Labour Court on the 20th April, 2005, in accordance with Section 17(1) of the Protection of Employees (Part-Time Work) Act, 2001. A Labour Court hearing took place on the 8th September, 2005.
The Court's Determination is as follows:
The dispute came before the Court by way of an appeal by the Union against the decision of a Rights Commissioner under the Protection of Employees (Part-Time Work) Act, 2001 (the Act) in relation to a claim for entitlement to comparable rates of pay with full time teachers for the period 21st December 2001 to 1st June 2002, the date the appellants fixed term contract ended.
The claimant was employed by the respondent to replace a teacher on a career break between 1st September 2001 and 1st June 2002, when his employment terminated he was paid an hourly rate of €26.08 which was lower than that paid to full-time teachers. Following discussions with the Department of Education and Science and ASTI on the application of the Act for part time workers, a letter dated 21st September 2004 was circulated from ASTI illustrating the Department’s agreement to a new rate of €35.86 from 21st December 2001. The Department issued a circular entitled“Payment ofArrears to Substitute and Part-time teachers employed in Voluntary Secondary Schools under the terms of the Part-time Act, 2001which allowed for payments of arrears for the period December 2001 to August 2003. This circular was issued in October 2004.
In April 2004, the appellant wrote to the School, seeking the revised payment of €36.28 per hour from 21st December 2001 until 1st June 2002. The School rejected his claim.
On 23rd August 2004 he presented a complaint to a Rights Commissioner pursuant to section 16 of the Protection of Employees (Part-Time Work) Act 2001 claiming redress in respect of alleged infringements of his statutory rights. The complaint was heard by the Rights Commissioner on 14th March 2005. The Rights Commissioner held that the complaint was presented outside the time limit prescribed by section 16 of the Act and in consequence it could not be entertained.
In its appeal to the Court, the Union submitted that the date of contravention of the Act was the date that the Department’s circular was issued (October 2004), which was the first opportunity the appellant had to lodge such a claim, and therefore the claim was within the specified timeframe laid down under section 16 of the Act.
Section 16 of the Act provides in relevant part as follows:
- (3) 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 or the date of termination of the contract of employment concerned, whichever is the earlier.
(4) Notwithstanding subsection (3), 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 (3) (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 time limit prescribed by section 16 (3) runs from the date of contravention of the Act to which the complaint relates. The Court is of the view that the latest date on which a contravention of the Act could have occurred was 1st June 2002, which was the date on which the Claimant’s employment terminated. The complaint herein was presented 27 months later. It was clearly presented outside the statutory time limit and could not be saved by the application of the extended limitation period provided for at section 16 (4).
Accordingly, neither the Rights Commissioner nor the Court has jurisdiction to entertain this claim. The decision of Rights Commissioner is affirmed and the appeal is disallowed.
The Court so determines.
Signed on behalf of the Labour Court
18th October, 2005______________________
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.