FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : TANDOOR LTD - AND - SHIV KUMAR DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal against Rights Commissioner's Decision No. R-086085-WT-09/RG.
BACKGROUND:
2. The Worker concerned was employed by the Company as a Chef from 3rd September 2006 until the 6th September 2009 when the restaurant closed.
The Worker claims that he worked a minimum of six days a week from 11.00 to 11.30 pm with approximately a one-hour break in the afternoon (except Sundays when he worked from 4p.m. to 11.30p.m.), totalling 62 hours a week. The hours changed in early November 2008 and he then worked from 4p.m. to 11.30 p.m. for six days a week totalling 45 hours a week..
The Worker referred a claim to a Rights Commissioner in respect of the excessive hours he was working for investigation.
The Rights Commissioner's findings issued in March 2010 in which he found that the complaint was not well-founded.
The Worker appealed the Rights Commissioner's decision to the Labour Court on the 13th April 2010, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Court heard the appeal on the 31st August, 2010.
The Employer did not attend the hearing.
The Court upheld the decision of the Rights Commissioner and found that the appeal was out of time.
DETERMINATION:
The Complainant appealed the Decision of the Rights Commissioner under the Organisation of Working Time Act, 1997 (“the Act”) which found that his complaint under the Act was not well-founded.
The Respondent failed to attend the hearing of this appeal before the Labour Court.
The Appellant was employed by the Respondent from 3rd September 2006 until 6th September 2009. The Appellant presented a claim to the Rights Commissioner’s Service on 23rd October 2009 pursuant to Section 27 of the Act claiming redress in respect of an alleged breach of Section 15 of the Act. He stated that he worked between 60 and 70 hours per week from the start of his employment until 8th November 2008 when the restaurant closed for lunch. From that date forward he worked from 4pm until 11.30pm, 6 days per week, amounting to 45 hours per week.
Section 27 of the Act provides in relevant part as follows:
- (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.
Having examined the matter, the Court is satisfied that no breach of Section 15 of the Act occurred in this period. Therefore, the Court does not find in favour of the Appellant’s appeal.
The Court, accordingly, concurs with the Rights Commissioner that the complaint is not well-founded and dismisses the appeal.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
4th October, 2010______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.