SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
DAWN COUNTRY MEATS LIMITED
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY MAHON SWEENEY SOLICITORS)
Chairman: Mr Duffy
Employer Member: Ms Cryan
Worker Member: Ms Tanham
1. Appeal against Rights Commissioner's Decision r-077149-wt-09/EOS.
2. Several Rights Commissioner hearings took place and the following Decision was issued on the 5th October 2010:
- "I require the Company to pay the Claimant €5,000 in compensation within 6 weeks of the date of this hearing."
The Company appealed the Decision of the Rights Commissioner to the Labour Court on the 15th November 2010, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 26th April 2012.
- This is an appeal by Dawn Meats Limited against the decision of a Rights Commissioner in a claim by Ms Roisin Hill under the Organisation of Working Time Act 1997 (the Act). For ease of reference the parties are referred to in this Determination as they were at first instance. Hence, Ms Hill is referred to as the Claimant and Dawn Meats Limited is referred to as the Respondent.
This matter was referred to the Rights Commissioner service of the Labour Relations Commission on 5thMay 2009. In her complaint to the Rights Commissioner the Claimant alleged that her employer, the Respondent herein, had failed to provide her with adequate rest and intervals at work, contrary to s.12 of the Act. The case was heard before the Rights Commissioner on 21stOctober 2009, 18thFebruary 2010 and 21stApril 2010. The Rights Commissioner gave her decision on 5thOctober 2010 in which she found for the Claimant and awarded her compensation in the amount of €5,000.
Preliminary objection to jurisdiction
The Respondent appealed to this Court against the decision of the Rights Commissioner. The hearing of the appeal opened before the Court on 26thApril 2012. Prior to the hearing the representative of the Respondent, Mr Ronnie Lawless of IBEC, notified the Court that in addition to disputing the findings of the Rights Commissioner on their merits, objection was being taken to the jurisdiction of the Court to entertain the within claims. This objection was based on the fact that the Claimant had been absent for her employment on sick leave during the six-month period prior to the date on which her complaints were presented to the Rights Commissioner. The Respondent pointed out that in consequence the contraventions to which the complaint relates could not have occurred during that period.
Mr Lawless referred the Court to the provision of section 27(4) of the Act which provides: -
- (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.
Having regard to that provision (and the fact that the Claimant had not applied to the Rights Commissioner for an extension of time pursuant to s.27(5) of the Act) Mr Lawless submitted that the complaint before the Court was statute barred and could not be entertained.
The Claimant was represented at the hearing, as she was at first instance, by Mr Sean Mahon of Mahon Sweeney, Solicitors, Main Street, Roscommon. Mr Mahon conceded the point taken on behalf of the Respondent in respect to the Claimant’s complaints concerning rest and intervals at work He accepted that in so far as her claim under s.12 of the Act were concerned it was presented out of time and that the decision of the Rights Commissioner could not stand. Mr Mahon went on to submit that the Respondent had contravened s.19 of the Act and / or Article 7 of Directive 2003/88/EC in failing to afford the Claimant annual leave in respect of a period during which she was absent from her employment on sick leave. In advancing that submission Mr Mahon relied on the decision of the Court of Justice of the European Union (CJEU) in Cases C-520/06 and C-350/06Stringer and others v. HM Revenue and Customs sub nom Commissioners of Inland Revenue v. Ainsworth and others Schultz-Hoff v. Deutsche Rentenversicherung Bund IRLR 214. It was submitted that the contravention to which that complaint relates occurred in respect of the leave year ending on 31stMarch 2012, and earlier years, and was therefore in time.
Mr Lawless objected to this matter being raised as it had not been before the Rights Commissioner and did not form any part of the Claimant's original complaint. He submitted that the Court only had jurisdiction to deal with complaints which formed the subject matter of the original referral to the Rights Commissioner.
In response, Mr Mahon contended that the complaint to the Rights Commissioner was that the Respondent had contravened the Act in relation to the Claimant and that matters relating to rest and intervals at work were in the nature of evidence adduced in advancing that complaint. It was submitted that in the context of an appeal by way of ade novohearing the Claimant was entitled to adduce new evidence and that her complaint remained the same as that dealt with by the Rights Commissioner, namely, that the Respondent had contravened the Act.
Following further argument on this point the Court asked the parties to prepare full legal submissions in writing on this point to include any relevant authorities. The Court went on to point out that the Act appears to provide that in order to accrue an entitlement to annual leave an employee must have actually worked a minimum number of hours in the relevant leave year. It was further pointed out that while the CJEU apparently decided inStringer / Schultz-Hoffthat an employee on sick leave continued to accrue an entitlement to annual leave, the question arose as to how the Court could give effect to that finding having regard to what appears to be a contrary provision in the Act. On that point the parties were also asked to prepare submissions on the related doctrines of direct and indirect effect of European law.
Supplemental submissions were subsequently received from the parties on these questions. The parties agreed that the Court could give its decision on the legal questions arising in the case without the necessity for a further hearing.
The Jurisdiction of the Court
The scheme of the Act is to provide for the reference of a complaint alleging a contravention thereof to a Rights Commissioner and for an appeal by way of ade novohearing by the Court. Consequently for the purposes of the Act this Court is a Court of Appeal and it cannot exercise any jurisdiction other than an appellate jurisdiction. That jurisdiction is founded upon the decision of the Rights Commissioner.
Section 27(2) of the Act provides, in effect, that an employee may present a complaint to a Rights Commissioner that his or her employer has contravened a “relevant provision” of the Act. The term “relevant provision” is defined by s.27(1) of the Act. Section 27(4) of the Act provides that the complaint must be presented within a period of six months from the date of the contravention to which the complaint relates.This suggests that the Claimant must provide sufficient information so as to allow the provision alleged to have been contravened to be identified and to specify the act or omission alleged to constitute a contravention. The forms used for the purpose ofpresenting a complaint are administrative in nature and have no statutory basis, (seeCounty Louth VEC v The Equality Tribunal and Pearse Brannigan, Unreported, High Court, McGovern J. 24thJuly 2009). However, as a matter of basic fairness and common sense, the claim would have to be made with sufficient particularity so as to allow the person against whom it is directed to know the nature of what is alleged. If the Act were to be construed otherwise an employer could be expected to meet a case without knowing the factual basis giving rise to the complaint. Such a construction would lead to manifest injustice and would contravene all known concepts of natural justice.
The Claimant was legally represented before the Rights Commissioner. It is clear from the decision of the Rights Commissioner that the only complaint presented to her was that“the employer was in breach of the Act arising from the non-provision of rest or lunch breaks”. The accuracy of what is recorded by the Rights Commissioner in that regard is not disputed. It is thus clear that the relevant provision of the Act alleged to have been contravened was section 12 and that the contravention to which the complaint related was the failure to provide the Claimant with adequate rest and intervals at work.
In the supplemental submissions made on behalf of the Claimant, the Court was referred to a number of authorities relating to the discretion to receive fresh evidence in an appeal. These authorities relate in the main to the interpretation and application of Order 58, rule 8 of the Rules of the Superior Courts 1986 in relation to the reception of evidence in the Supreme Court on matters that occurred after the date of the decision under appeal. The Court was also referred to the decision of the Supreme Court inAA v the Medical Council and the Attorney GeneralIESC 70. This latter case concerned an appeal to the Supreme Court in Judicial Review proceedings in which the appellant sought to argue a point not dealt with in the judgment under appeal. However the point was raised and fully argued in the High Court although not dealt with in the subsequent judgment. The Supreme Court allowed the point to be raised.
In the Court’s view none of these authorities avail the Claimant. In ade novoappeal a party is entitled to adduce any evidence they wish provided it is relevant and probative and so long as the nature of the claim remains the same as that dealt with at first instance. What is in issue in this case is not a question of adducing new evidence on some fact that was in issue at first instance. Rather, it is a case of the Claimant seeking to pursue an entirely new claim. If that claim were to be entertained by the Court it would be purporting to exercise an original jurisdiction that it does not have.
For the forgoing reasons the Court is satisfied that it has no jurisdiction to entertain the claim in respect to holidays that the Claimant now wishes to pursue. It is conceded that the claim in respect of rest and intervals at work, which was before the Rights Commissioner, was presented outside the time limit prescribed by s. 27(4) of the Act. Accordingly that claim is statute barred and cannot be entertained.
In these circumstances it is unnecessary for the Court to consider the submissions made in relation of the legal principles applicable in the interpretation of domestic law in light of the decision of the CJEU in joined casesStringer and others v. HM Revenue and Customs sub nom Commissioners of Inland Revenue v. Ainsworth and others Schultz-Hoff v. Deutsche Rentenversicherung Bund.
The within appeal is allowed and the decision of the Rights Commissioner is set aside.
Signed on behalf of the Labour Court
7th September, 2012______________________
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.