SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
SPEEDWAY CONSTRUCTION IRELAND LTD
(REPRESENTED BY J.C. HOBAN SOLICITORS)
- AND -
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES)
Chairman: Mr Hayes
Employer Member: Mr Murphy
Worker Member: Ms Ni Mhurchu
1. Appeal Of Rights Commissioner's Decision r-109190-wt-11.
2. Both the Employer and the Worker appealed the Decision of the Rights Commissioner to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 21st August 2012.
The case comes before the Court by way of an appeal by both parties against a decision of the Rights Commissioner under the Section 27 of the Organisation of Working Time Act 1977 (“the Act”).
Speedway Construction Ireland Ltd (“the Respondent”) employed Mr Augaitis (“the Complainant”) as a labourer from 8thMarch 2006 until the 18thFebruary 2008 and again from the 1stDecember 2008 until the 1stNovember 2010. On the 15thApril 2011 the Complainant made complaints under Rights Commissioner under Section 27 of the Organisation of Working Time Act 1977 (“the Act”). He alleged that the employment practices imposed on him by the Respondent amounted to a breach of Section 11, 12, 15 and 17 of the Act.
The Rights Commissioner conducted a hearing into the complaints. The Respondent did not attend the hearing.
The Rights Commissioner issued his decision on the complaints on the 15thFebruary 2012.
The Rights Commissioner Service of the Labour Relations Commission sent the decision to each of the parties by registered post on the 16thFebruary 2012. An Post attempted to deliver the letter to the Respondent at the Company’s registered address. Delivery of the letter was refused and An Post returned the letter to the Labour Relations Commission marked “refused” The Respondent subsequently discovered that the decision of the Rights Commissioner had been issued on the 16thFebruary and sought to appealed the decision to the Labour Court on 25thApril 2012. The Complainant submits that the appeal is out of time. The respondent submits that the Court does not have jurisdiction to consider the appeal.
The case came on for hearing before the Court on Tuesday 21 August 2012.
The Relevant Section of the Act
Section 28(2) of the Act provides
- (2)An appeal under thissectionshall be initiated by the party concerned giving, within 6 weeks of the date on which the decision to which it relates was communicated to the party, a notice in writing to the Labour Court containing such particulars as are determined by the Labour Court undersubsection (4)and stating the intention of the party concerned to appeal against the decision.
Position of the Parties:
The Respondent was represented at the Hearing by Mr Krystian Bonio, J.C. Hoban Solicitors. The Respondent accepts that Labour Relations Commission sent the Rights Commissioner’s decision, by registered post, to the Company’s registered business address on the 16thFebruary 2012. It submits that the company was in a dispute with its landlord at that time, did not have access to the registered business address and was not therefore in a position to accept delivery of the letter. It submits that the landlord was withholding the Company’s mail during the dispute regarding the rent and had refused to accept the registered letter in this case.
The Complainant was represented at the Hearing by Ms Ruth Lynch, Richard Grogan & Associates Solicitors. She submitted that the decision of the Rights Commissioner was communicated to the Respondent in writing in accordance with the provisions of Section 28 (2) of the Act. The Respondent had failed to initiate its appeal within the six weeks prescribed in that section. The Respondent cannot rely on its own failure to make arrangements to receive or collect its post as grounds for asserting that the decision had not been communicated to it. She submitted that the Complainant was prejudiced by the Respondent’s behaviour and was entitled to proceed to seek to enforce the decision of the Rights Commissioner in accordance with law.
Findings of the Court
Section 28(2) of the Act requires that an appeal against a decision of a Rights Commissioner made under section 27 of the Act shall be made to the LabourCourt “within 6 weeks of the date on which the decision to which it relates was communicated to the party.”The Respondent does not dispute that the Rights Commissioner’s decision was sent to the Company’s registered business address by registered letter on 16thFebruary 2012. It submits that it did not however receive the letter for various reasons outlined above.
However, no evidence in support of the submissions made by the Solicitor for the respondent was presented to the Court. Nobody from the respondent company attended Court to give evidence on the matter.
Accordingly the Court finds that the decision of the Rights Commissioner was communicated, in writing, to the Respondent on the 20thFebruary 2010, by way of registered letter sent on the 16thFebruary 2012. The time for an appeal to be filed with the Labour Court expired 6 weeks after that date on the 1stApril 2012. The Respondent did not submit an appeal to the Labour Court until 25thApril 2012 which is outside the statutory time limit for the making of an appeal under the Act. The Court has no discretion in relation to this matter.
The Respondent’s appeal is out of time and is not properly before the Court. The decision of the Rights Commissioner has not been appealed to the Labour Court within the statutory time limit for the making of such appeals.
The Court so determines.
Signed on behalf of the Labour Court
6th September, 2012______________________
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.