SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
INDUS FOOD CASH AND CARRY
(REPRESENTED BY DEVANEY & DURKIN)
- AND -
(REPRESENTED BY NOEL G. MCARDLE & COMPANY SOLICITORS)
Chairman: Ms Jenkinson
Employer Member: Ms Doyle
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioner's Decision r-108330-Wt-11/RG.
2. A Rights Commissioner hearing took place on the 17th August 2011 and the following Decision was issued on the 19th October 2011:
- "I declare I do not have jurisdiction to hear this complaint as the complaint was submitted outside the time limit as set down in Section 27(4) of the Act."
The Worker appealed the Decision of the Rights Commissioner to the Labour Court on the 30th November 2011, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 30th August 2012.
This matter came before the Court by way of an appeal by Mr. Ejaz Ahmed (the Complainant) against the Decision of a Rights Commissioner in his complaint under the Organisation of Working Time Act, 1997 against Ms. Amita Malkan t/a Indus Foods Cash & Carry. The Rights Commissioner found that as the Complainant’s complaint under the Act was outside the time limit provided for under Section 27(4) of the Act, she had no jurisdiction to deal with the claim. The Complainant appealed the decision of the Rights Commissioner.
The Complainant’s employment commenced on 3rdJuly 2009 and terminated on 1stOctober2010. The complaint was received by the Rights Commissioner on 18thMay 2011. The Complainant contended that he was not provided with adequate rest periods contrary to the provisions of Section 12 of the Act; he was not paid a premium for working on Sundays contrary to Section 14 of the Act; and he was not provided with annual leave and public holiday entitlements contrary to Sections 19 and 21 of the Act.
Section 27(4) provides, in effect, a time-limit of six months for the bringing of a complaint under the Act starting from the date of the contravention to which the complaint relates. The within complaint was presented to the Rights Commissioner on 18thMay 2011. Hence, by application of the time-limit at Section 27(4), the Court can only have regard to contraventions found to have occurred on or after 19thNovember 2010, and as the Complainant’s employment terminated on 1stOctober 2011 there can be no contravention in that period. However, Section 27(5) allows the Court to enlarge the time-limit by up to a further 12 months where reasonable cause is shown for the delay in referring the complaint to the Rights’ Commissioner. The Complainant applied to the Court for an extension of time in accordance with that provision.
The test for deciding if reasonable cause is shown for the purpose of the Act was considered by the Court inCementationSkanska (Formerly Kvaerner Cementation) v CarrollLabour Court Determination WTC0338 (October 28, 2003 ). Here the Court said: -
- 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.
In this case the Complainant told the Court that shortly after his employment terminated he sought advice from the Migrant Rights Centre of Ireland (MRCI) on his previous working conditions with his former employer. MRCI advised him of his right to take claim under various statutes, including the Organisation of Working Time Act, 1997. MRCI advised him of the time limits involved for bringing such claims. The Complainant’s legal representative submitted an email confirming these details from MCRI, dated 25thFebruary 2011.
The MRCI email indicated that the Complainant visited its offices on 2ndNovember 2010 to discuss his former working conditions etc. The email stated that the Complainant was“not sure yet whether he wants to challenge”[referring to each of the Acts mentioned in the email]. It stated that the Complainant told them that he had a new employer and he wanted to apply for a new work permit, but that“he will come back when the application is ready for submission”.
In his evidence to the Court the Complainant stated that he did not go back to MRCI; he said that he was reluctant to process his complaints at the time as his cousin was still working for the Respondent.
The Court notes that his cousin’s employment with the Respondent ceased on 25thFebruary 2011 and he was in contact with his Solicitor after that date about processing his complaint. His Solicitor told the Court that there was a mix up with clients’ details of similar names in his office which contributed to the delay.
The decisive criterion in considering an application to extend time is that of reasonableness. Having regard to all the circumstances of the case the Court is satisfied that reasonable cause has not been shown to explain the delay in submitting his complaint under the Act. The Complainant was clearly advised of the time limits involved, he made a decision not to pursue the matter while his cousin was still employed by the Respondent, and he informed MRCI that he would come back if he wished to proceed but did not do so.
Even if the Complainant’s case were to be taken at its height the reason advanced for the delay may explain a delay up to 25thFebruary 2011 (when his cousin ceased working for the Respondent) but it could not explain the delay up to 18th May 2011. While there may have been a mix up with client details in the Solicitor’s office around this time, MRCI had clearly flagged the time limits involved under the Act.
Consequently the Court cannot find any basis upon which it could grant an extension of time and the application in that behalf is refused.
Therefore, the Court upholds the Rights Commissioner’s Decision and the Complainant’s appeal fails.
The Court so Determines.
Signed on behalf of the Labour Court
5th September, 2012______________________
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.