FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : AER LINGUS (REPRESENTED BY MR MARK CONNAUGHTON S.C INSTRUCTED BY ARTHUR COX SOLICITORS) - AND - MR ARON GOKUL-MS KAREN O'MAHONY-MR GERARD PETTIT-MS KAREN HOURIHAN-MR ROBERT O'MEARA (REPRESENTED BY MR JAY GOKUL B.L. INSTRUCTED BY ALBERT WOLFE & COMPANY SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal against a Rights Commissioner's Decision r-109 (695 - 699 - 704 - 707 - 712 ) ft/11 / JOC.
BACKGROUND:
2. The Complainants appealed the Rights Commissioner's Decision to the Labour Court on the 26th June, 2012. A Labour Court hearing took place on the 28th February, 2013.
The following is the Labour Court's Decision:-
DETERMINATION:
This is an appeal by Mr Aron Gokul, Ms Karen O’Mahony, Mr Ger Pettit, Ms Karen Hourihan and Mr Robbie O’Meara (hereafter referred to as the Complainants)against a Decision of a Rights Commissioner in their claim against Aer Lingus plc (hereafter the Respondent)under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). The Rights Commissioner found that the claim was presented out of time and consequently failed.
Background
The Complainants commenced employment with the Respondent in or about in 2004/2005 on fixed-term contracts. They were subsequently appointed on permanent contracts with effect from 2006/2007. Between November 2008 and November 2009 the Complainants’ contracts of employment were terminated by reason of voluntary redundancy as part of a scheme introduced whereby employees could leave their employment and return on revised pay and conditions. The Complainants received a redundancy lump sum and they each signed a document waving all claims against the Respondent in respect of their employment.
In or about 2006 the Respondent became a PLC. At that time it introduced a scheme whereby shares in the Respondent were allocated to employees through an Employee Share Ownership Trust (ESOT). The terms under which shares were allocated provided that only those employees who had completed one year of continuous employment with the Respondent were qualified to participate in the scheme. The Respondent held that they were not eligible to participate as they did not have the requisite service in 2006. The Complainants were employed on fixed-term contracts of employment at that time.
The final allocation of shares under this scheme occurred in or about December 2010, at which point they were then employed on contracts of indefinite duration.
The Claim
The claim, referred on 20thJune 2011 to the Rights Commissioner, concerns the Complainants’ alleged entitlement to participate in and be allocated shares within the ESOT.The Complainants contended that the Respondent continuously breached Section 6, *inter alia, of the Act in excluding them from receiving a distribution with vesting of Actual Shares in the Respondent Company, on or about December 2010.
*claims were also submitted under sections 8, 9,10, 12 and 13 of the Act.
The Respondent disputed the Complainants entitlement to bring a claim under the 2003 Act and contended that the claim should be dismissed. In its submission to the Court the Respondent raised the following preliminary matters:-
(i)none of the Complainantsare or havebeena fixed termworkerwithinthe
meaningof the 2003 Act atanytimeduringtheperiodof12monthspreceding
thedate ofthe institutionof theseproceedings.
(ii)each of the Complainantsavailed ofavoluntary severance programme in 2009 andsignedawaiver ofallclaimsarising from their previous contractual
relationshipas employees of the Respondent,howsoeverarising.
(iii)the claimsweremade outsidethelimitation period set out in Section 14 ofthe
2003 Act.
The Court decided, with the concurrence of the parties, to determine the preliminary question of its jurisdiction by way of a preliminary ruling.
Summary of the Complainant’s Case
Mr Jay Gokul B.L., instructed by Albert Wolfe and Company Solicitors, on behalf of the Complainants claimed that the criteria for participation in and allocation of shares within the ESOT, which stipulated a requirement to have“a period of twelve months Continuous Service ending on a share allocation date”was in breach of the Act. Mr Gokul stated that in period October 2005 to February 2006, it was customary and common practice for the Respondent to recruit,from time to time,groups or panels of temporary fixed term employees on a rotational basis to ensure that no member of the group or panel would achieve, at anyone time, a fixed term contract or a series of successivefixedterm contracts that would amount to a duration equal to or greater than one year, i.e. the recruits would never achieve the status of being continuously employed for a period of one year within the meaning of the Unfair Dismissals Act 1977.
In its submission to the Court the Complainants contended that a continuing breach arose from the Respondent’s failure to grant them information,access and participation in the Notional Allocation of the Company's Employee Share Ownership Trust (ESOT Scheme) in 2006, thereby precluding them from gaining entitlements to receive Actual Shares in the Respondent Company,on the 21st December 2010.
This, Mr Gokul contended was in contravention of Section 6(1),inter alia,of the Act in that the Respondent treated them in a less favourable manner than a comparable permanent employee. Thesubstance of their claim being that the Complainants, being fixed-term employees within the meaning of Section 2 of the Act at the time of the Notional Allocation of Shares were entitled to the same terms and conditions of employment, including Actual Share entitlements in the Respondent Companyas comparable permanent employees of the Respondent.
Mr Gokul contended that the claim, herein, was not statute-barred because it was in respect of a continuing breach of duty by the Respondent and was a cause of action in which damage is an essential ingredient.
Mr Gokul submitted that the Complainants’ exclusion from receiving actual shares was a continuing breach of their rights which commenced during the Notional Allocation of Shares in or around July 2006 and continued until the 21st of December 2010 being the date of accrual of shares.
Mr Gokul contended that the Respondent, by treating the Complainants asexcludedand its subsequent failure to acknowledge and rectify the entitlements up until 21st December 2010 and its failure to inform the Complainants of their rights amounted to a continuous breach.
In view of the fact that the ESOT Scheme spanned a number of years before its conclusion in December 2010 the Complainants had in the interim through the passage and efflux of time gained permanent employment status within the Respondent Company.
InDublin Port Company v Stephan McCraith & Robert Kiernan Determination No. 0810,the Labour Court recognised the existence of the within continuous breach perpetrated against the claimants by stating the following:
- "Situations can arise in which discrimination suffered by a fixed-term
employee is carried over into a period of permanent employment. A typical example of this is where a worker obtains a contract of indefinite duration by operation of law on foot of s.9of the Act. Here the original contract continues with the terms providing for its termination by effluxion being severed This was accepted as being the case in McArdlevMinister for Finance [20077 IEHC98.Moreover, a fixed-term employee may be denied incremental credit for a period of fixed-term employment and this could affect his or her continuing salary level. In that type of situation it could be said that the relief sought is for the denial of a right accrued while the person was a fixed-term employee".
Mr Gokul stated that the ESOT Shares form part of the Complainants’ contract of employment with the Respondent. However, he submitted thatany reference to the waiver signed in respect of their voluntary redundancy parting was irrelevant.
On the preliminary issues raised Mr Gokul made the following submission:
Neither Section 14 nor Section 15 of the Act excludes any employee from taking a case where a valid complaint has been alleged according to the Act’s own interpretation, this Mr Gokul submitted was in line with the Directive 1999/70/EC and the Framework Agreement from which it is derived. The only precondition to bringing a complaint under the Act of 2003 is that the complainants must satisfy Section 14 (3) and 15 (2) of Act.
Mr Gokul submitted that this Court is bound to apply the interpretation of the Directive and the Framework Agreement [1999/70/EC]. Furthermore, it is the responsibility of the National Courts, in particular, to provide the legal protection which individuals derive from the rules of EU law and to ensure that those rules are fully effective. In support of his contentionMr Gokulcited the decision of the High Court inMinister for Finance v CPSU, PSEU and IMPACT[2007] 18 ELR 36 and that of the Court of Justice of the European Union (CJEU) in Case C-177/10Santana v Consejeria de Justicia y Administracion Publica de la Junta de Andalucia[2011] All ER (D) 103.
Mr Gokul quoted at length from theSantanacase, including the following where the CJEU held:-
“……. it should be pointed out that clause 4(4) of the framework agreement provides that period-of-service qualifications relating to particular conditions of employment are to be the same for fixed-term workers as for permanent workers, except where different period-of-service qualifications are justified on objective grounds. It does not follow either from the wording of clause 4(4) of the framework agreement or from the context in which it is placed that that provision ceases to be applicable once the worker concerned has become a permanent worker. The objectives pursued by Directive 1999/70 and the framework agreement, which are intended both to prohibit discrimination and to prevent abuse resulting from the use of successive employment contracts or relationships, suggest the contrary.”
And he quoted a passage from the opinion delivered by Advocate General Sharpston delivered on 12thMay 2011 at paragraphs 47, 48 and 49:
“ What is being claimed in the main proceedings is the right to have periods of time spent as a fixed-term worker taken into account in calculating eligibility for promotion in the same way as a comparable permanent worker in an employment relationship with the same employer.Can such a broad interpretation of clause 4 be justified?
In my view, such an interpretation is not merely a permissible interpretation. It is the only interpretation which satisfies the requirement that that provision be interpreted in a manner which is not restrictive. The fact that Mr Rosado Santana is now in a permanent employment relationship with the Junta has no bearing whatsoever on the argument being put forward on his behalf. What is of crucial relevance, by contrast, is whether a failure to take into account the periods spent as a fixed-term worker in assessing his eligibility for promotion purely because of the fixed-term nature of his employment relationship would amount to discrimination for the purposes of clause 4.
A more restrictive approach would defeat the whole purpose of clause 4 of the framework agreement. It would render permissible one of the forms of discrimination the directive and the framework agreement were enacted precisely with a view to avoiding.”
In the matter of joined cases C-302 /11 to C-305/11Valenza v. Del Mercato,unreported, CJEU, 18thOctober 2011, Mr Gokul quoted at length, including the following where the CJEU held:-
- “The mere fact that the applicants in the main proceedings obtained the status of permanent workers does not mean that, in certain circumstances, they cannot rely on the principle of non-discrimination laid down in clause 4 of the framework agreement (see Rosado Santana, paragraph 41, and see, to that effect, Case C-251/11 Huet [2012] ECR I-0000, paragraph 37).”
- “It is apparent both from the wording of Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP and of the said framework agreement annexed to the directive, as well as from their background and purpose, that the provisions laid down can apply also to fixed-term employment contracts and relationships concluded with the public authorities and other public-sector bodies.
Having regard to the importance of the principles of equal treatment and non-discrimination, which are amongst the general principles of Community law, the provisions set out in that regard by Directive 1999/70 and by the framework agreement for the purposes of ensuring that fixed-term workers enjoy the same benefits as those enjoyed by comparable permanent workers, except where a difference in treatment is justified by objective grounds, must be deemed to be of general application since they are rules of Community social law of particular importance, from which each employee should benefit as a minimum protective requirement.Accordingly, Directive 1999/70 and the framework agreement are applicable to all workers providing remunerated services in the context of a fixed-term employment relationship linking them to their employer.
The mere fact that a post may be classified as ‘regulated’ under national law and has certain characteristics typical of the civil service in the Member State in question is irrelevant in that regard. Otherwise, in reserving to Member States the ability to remove at will certain categories of persons from the protection offered by Directive 1999/70 and the framework agreement, the effectiveness of those Community instruments would be in jeopardy as would their uniform application in the Member States. As is clear not only from the third paragraph of Article 249 EC, but also from the first paragraph of Article 2 of Directive 1999/70, in the light of recital 17 of that directive, the Member States are required to guarantee the result imposed by Community law.
- The concept of ‘employment conditions’, referred to in clause 4(1) of the framework agreement on fixed-term work, annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP should be interpreted as meaning that it may be the basis for a claim for the grant to a fixed-term worker of a length-of-service allowance which is reserved under national law solely to permanent staff.
In the first place, the framework agreement aims to apply the principle of non-discrimination to fixed-term workers in order to prevent an employer using such an employment relationship to deny those workers rights which are recognised for permanent workers. That principle of Community social law cannot be interpreted restrictively.
- Clause 4(1) of the framework agreement on fixed-term work, annexed to Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP must be interpreted as precluding the introduction of a difference in treatment between fixed-term workers and permanent workers which is justified solely on the basis that it is provided for by a provision of statute or secondary legislation of a Member State or by a collective agreement concluded between the staff union representatives and the relevant employer.”
Summary of Respondent’s Position
Mr Mark Connaughton S.C., instructed by Arthur Cox Solicitors, on behalf of the Respondent, stated that as each of the Complainants were on permanent employment contractsinceno later than January 2007 they therefore cannot establish an entitlement to bring a claim under the Act. In its submission to the Court the Respondent submitted that asatanytimeduringtheperiodof12monthspreceding thedate ofthe institutionof theproceedingthe Complainants werenot fixed termworkerswithinthe meaningof the Act, therefore the Court shoulddismiss the claimsat the outset.
In so far as the decision in the CJEU inSantanahas been invoked by the Complainants, he submitted that to contend that they might still bring the claim, it is of no assistance. That case makes clear that:-
- “it is for the domestic legal system of each Member State, pursuant to the principle of the procedural autonomy of those legal systems, to designate the Courts and Tribunals having jurisdiction to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law”
Furthermore, without prejudice to theforegoing, Mr Connaughtonstated thateachof the Complainants was apermanent employeeofthe Respondent no later than January 2007 and in2009theyavailed of the benefits of avoluntary severance programme. Further,uponeach oftheComplainantsexecuting anappropriatewaiver ofallclaims
howsoeverarising, a substantiallumpsum payment wasmade bythe Respondentin
respect of the voluntary severance and migrationarrangements that involved significant changes to conditions of employment. Each Complainantthenentered intoanew
contractofemploymentwith the Respondentsubject torevised terms andconditions. This did not applyto all permanentemployeesof the Respondent.
He stated that the waiver wassupported by valuable consideration andclearly
contemplatedthe exclusionofclaimsunder variousprotectiveemploymentstatutes, andwhile it does not specifically refer to the 2003 Act it clearly includes a waiver of claimsunder the Act. He also stated thatthe document also records that the personsigning it has had the opportunity of takingindependent advice on the terms therein. In support of this contention he cited the decision of the High Court (Smyth J.) inSunday Newspapers Limited v Kinsella [2007] IEHC 324which he claimed was instructive in this regard and was clearauthority for the proposition that the waiver in the instant
case,as set out in the Form of Acceptance, wassufficient to encompass anyclaim herein.
Mr Connaughton pointed out thatboth the Complainants and the named Comparatorswere all permanentemployees. He said that the waiver did not affect the position of anyemployee who was otherwise entitled to an allocation ofshares. The ESOT Trust Deed made provision that if an employeeceased to be employed by the Respondent, they would continueto benefit from any notional allocation ofshares made to them prior to the termination of their employment,subject to certain provisions of the Taxes Consolidation Act 1997.
Mr Connaughton argued thattheprovisionsof Section 14(4) ofthe Act makelimited
provision for anextensionof timedo not admit the possibility of a claim being made outside of these time limits.He said thatwhile ignoring statutory requirements,however valid a point might be that the Complainantsare victims of a continuing wrong, it has no merit where they ceased to be fixed term workers several years before.
Mr Connaughtonstated that strictly without prejudice tothe foregoing, if the Court consideredthatany of the claimsweremade within thelimitation period set out inthe
2003 Act, hecontendedthat there wasno discrimination withintheprovisions of
Section6 of the Act, all employees regardless of their contracts of employment were subject to the criteria specified it the Deed of Trust. In any event, he contended that there were
objective grounds justifyingtheconditionimposed byClause2of the relevant Deed of
Trustgoverningthenotionalandactual allocation of shares to employees.
Furthermore, he contended that the Complainants have not confronted the issue of the party against whom relief is sought as the rights asserted are rights that were determined by the Trustees of the relevant scheme.
Findings of the Court on the preliminary issuesMr Gokul stated that the central issue before the Court arises from a claim that the Respondent continuously breached Section 6,inter alia,of the Act by excluding the Complainants from receiving a distribution with vesting of actual shareson or about December 2010.
He said that the continuous breach arises from the fact that the Respondent had failed to grant them information,access and participation in the notional allocation of the ESOT Scheme in the year 2006 thereby precluding the Complainants from their entitlement in receiving actual shares in the Respondent Companyon 21st December 2010. Each participating staff member of the Respondent who was notionally allocated shares on the following dates;15thOctober 2003; 9thJune 2004; 2th August 2004; 14thJune 2005; 12thJuly 2006; 2ndOctober 2006; and3rd November 2006,received their actual shares commensurate with their relevant service record, in or around December 2010. The Complainants were neither informed nor were they allowed,or given the
opportunityto participate in the Respondent's ESOP Scheme.
Therefore, Mr Gokul submitted that the"date of contravention"within the meaning of the Act refers to the date of the wrongful act to which the complaint relates i.e. the denial of actual shares on 21st December 2010,while at the same time he argued that the contravention at issue was a continuing breach as the Complainants were not aware of the opportunityto participate in the ESOP Scheme and did not become aware until the distribution of actual sharesto those included in the schemeon or about December 2010. The date of referral of the claim under the Act was 20thJune 2011. There is no dispute that during these respective dates the Complainants were at all times permanent employees and had been since 2007.
Both parties relied upon theGallagher v ACC Bank plc [2012] IESC 35to support their arguments as to when the cause of action accrued.
In theGallaghercase, the Plaintiff claimed damages for a breach of the investment contract entered into between him and ACC concerning a financial package sold by the bank known as “Solid World Bond 4” where Mr Gallagher borrowed money from the bank in order to invest in the bond. The term of the investment was five years and 11 months, and no withdrawals or redemptions were permitted during this period. It was accepted by the parties that the claim in contract was statute barred as the claim was not initiated within six years. The Plaintiff claimed that the right to sue only arose when the investment matured and proved to be inadequate.
The Supreme Court found that Mr Gallagher’s case conclusively pointed to the fact that he suffered damage by the very fact of entering into the transaction and purchasing the bond. And accordingly held that Mr Gallagher’s cause of action for negligent advices causing financial loss or damage accruedon the date on which he entered into the contractual relationship with the bankand his claim of negligence was therefore statute barred.
MrGokul stated that at the High Court Charleton J.noted that, inHegartyvO'Loughran[1990] 1 I.R.148 , it had been held by the High Court that accrual of the cause of action in tort is complete from the date when the damage occurs. He cited the dictum of Lord Esher M.R.inReadv.Brown(1889) 22 Q.B.D. 128 at 131 on the question of when damage occurs, which is when the plaintiff can establish"...every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved
The learned judge thought, however, that there was more scope for debate
as to when damage is manifest in cases of economic torts. He continued:
"Each case is to be judged on the facts as to when the tort occurred, and
whether damage resulted at that time or whether the wrong initiated a course
of action that later resulted in a loss. "
On that basis, Mr Gokul held that thecause of action or date of contravention of the Act to which the within complaint relates occurred on the day the Complainants were denied actual shares in the Respondent Company, this occurred when the Complainants suffered provable loss or damage i.e.on or about the 21st December 2010 being the conclusion date of the ESOT Agreement. And relying on theSantanaandValenzacases he held that “the merefact that the applicants in the main proceedings obtained the status of permanent workers does not mean that, in certain circumstances, they cannot rely on the principle of non-discrimination laid down in clause 4 of the framework agreement”.
Clause 4 of the Framework Agreement provides for the application of the principle of equal treatment to fixed-term workers. This is transposed by Section 6 of the Act and it was accepted by all parties that the language of that section fully comports with that of Clause 4 of the Framework Agreement.
Mr Connaughton relied upon theGallaghercase on the basis that the Supreme Court ruled that Mr Gallagher suffered immediate loss and damage (and accordingly the cause of action accrued) on the date on which he purchased the product in 2003. On this basis, Mr Gallagher was prevented by the Statute of Limitations from proceeding with his claim against the bank. He referred to Fennelly.J at paragraph 116.
- “It is to my mind inescapable that the plaintiff’s claim as pleaded is that he suffered damage by the very fact of entering the transaction and purchasing the Bond. The cause of action then accrued. That was also the date when he entered into a contractual relationship with the Bank.”
Mr Connaughton disputed the Complainant’s contention of being unaware of the ESOP and stated that theywere at all times aware of the terms and the conditions governing notional allocation of shares.The last date of notional allocation under theESOP occurred on 3 November 2006.If there was any infringement of rights,which was denied,then it occurred no later than that date and theComplainantsare long out of time to bring anyclaim.
He said that insofar as theComplainantsmight contend that the operation of the said ESOT infringed their rights this cannot be based on the allocation of shares. The term which they seek to impugn is a term of the original Trust Deed on foot of which notional allocations of shares took place between 15 October2003 and 3 November 2006. The actual allocation of shares in 2010 onlybenefitted those to whom notional allocations were made and bringsinto effect the benefit of the said notionalallocations. Inso far as Clause 4.14 of the Trust Deed provides that the notional allocation of shares does not confer any particular title or rights upon a beneficiary (as defined under the Deed),it must be read in the context of other provisions, including Clause 4.15 of the Trust Deed and paragraph 16 of Schedule 12 of the Taxes Consolidation Act 1997.
Mr Connaughton stated that it is beyond doubt that the question of time limits for the bringing of claims under measures such the instant one deriving from a Directive are a matter for the domestic legal system in each memberstate (c.f. the discussion inPreston and ors.v Wolverhampton Healthcare NHS Trust&ors. (Joined cases)so long as the rules are not be such as to make the enforcement of Community law rights impossible in practice and they must not be less favourable than those applying to a similar claim of a domestic nature.
•Cause of action
Having considered the extensive written and oral submissions made the Court is satisfied that the Complainant’scause of action, if any, occurred due to the stipulated criteria in the original Trust Deed which excluded them as they were deemed not to have twelve months continuous service,on foot of which notional allocations of shares took place between 15 October2003 and 3 November 2006.
The Court notes the email referred to which they claim brought the issue to light in January 2011 and their response to that email:
- Weare writing to you inrelation to the ESOP shareallocationin December, wehavenot been allocated anyshares in thisprocess.Wearecurrent teammembers of AerLingus at its Ground Operations in Cork.Wewere employed as fixed term staff in December 2004, at thetime Aer Lingus organised its fixed term workers with
contracts of periods of nineto eleven months, staff werethen released for two to threemonths and other staff hired tocover during thesebreaks,staff werethen re-employed for further periods of similar duration. Wewerereleased from ourcontractin September 2005 and wererehired inNovember2005in linewith theaboveand havenotsincebeen released savefor themigration redundancy period. All of us wereemployed atthetimeofflotationin2006and indeed manyof us purchased shares at this timein an internalcompanyoffer prior to flotation.Wearevery
disappointed byour omission from theESOP shareallocation process and believewehaveservedthecompanyin good faith since 2004. Werespectfullywish to appeal thedecision by ESOP not to award ussharesinthis current allocationand seek your adviceas towhom this appeal should bemade,weremain loyal and diligentemployees andthank you foryour timeandconsideration,
SincerelyYours,
It is well settled that, absent a statutory provision to the contrary, a limitation period runs from the time a cause of action accrues and not from the date on which the plaintiff came to know the nature or extent of his or her legal rights (seeMcDonnell v Ireland[1998] 1 IR 134).
In the Supreme Court Decision inCox v Ireland,Carroll J held as follows: -
- “There is no substance in the plaintiffs arguments that there was no cause of action until he knew that Section 4 of the Act of 1939 had been held to be unconstitutional. He had the right to bring proceeding once he was notified that his job was forfeited but he had to bring such action within the statutory period. The forfeiture complained of was a single act and not a continuing wrong.
That proposition was put beyond argument in the recent case ofMinister for Finance v CPSU, PSEU and IMPACT. [2007] 18 ELR 36. This was a case in which Civil Servants sought an extension of time to bring proceedings under the Anti-Discrimination (Pay) Act 1974. They claimed that they were unaware that their legal rights had been infringed until the ECJ gave judgment in C- 1/95Gerster v Freistaat Bayern[1997] ECR 1-5253, in which a point identical to that upon which they relied in their substantive case had been decided.
In accordance withMinister for Finance v CPSU & Ors, the Court is of the view that the cause of action in the within case has been extinguished by the passage of time and subsequent events cannot revive it. While subsequent events could potentially give rise to a new cause of action, as the Complainants’ status changed as late as January 2007 from a fixed term to a permanent status then it is no longer possible for theComplainantsto pursue a claim under the Act.
Therefore, the Court is satisfied that the cause of action, if any, occurred for the Complainants on 3rdNovember 2006.
•Locus standi
The Court does not accept thatSantanaorValenzaconferslocus standion permanent employees who had been such for a period of four years before the date of claim. As the CJEU held inPreston and ors.it is amatter for each Member State to apply its own procedures as long as they conform to the norm within itsdomestic legal system.Therefore, they do not have “locus standi” under the Act as they were not“fixed term employees”within the meaning of Section 2 of the Act.Claims under the Act must be brought within the six months limitation period set out under Section 14(3) or by extension up to a maximum of twelve months pursuant to Section 14(4).
•Statute barred
Mr Gokul submitted thatthe date of the contravention to which the complaint relateswithin the meaning of the Act is the 21st December 2010.The Complainants initiated proceedings in accordance with Section 14 (3) on 20thJune 2011therefore he submitted that the within claim is not statute barred.
As the Court has found that the cause of action, if any, accrued in November 2006, then clearly the complaints are out of time in accordance with Section 14 of the Act and are consequently statute barred.
The alleged breach, if any, complained of, occurred in November 2006. The Court is of the view that any claim under the Act should have been made within the 6 month period thereafter. In January 2007, the Complainants became employees on contracts of indefinite duration and in 2009 their employment with the Respondent was terminated.
The Complainants were subsequently re-employed and in 2010 made the complaint, the subject matter of this application. This complaint was made more than three and a half years after the alleged cause of action accrued, at a time when the Complainants had been on contracts of indefinite duration for more than three years. The Act clearly states that all complaints must be referred within 6 months of the contravention or if reasonable cause is shown within 12 months. The alleged contravention, if any, which may have occurred, was the failure to include the Complainants in the ESOT scheme in November 2006.
•The waiver
The Court does not consider it necessary to give its opinion on whether the existence of the waiver encompasses the claim herein as it has found that the Complainant’s claim is statute barred and the Complainants’ have nolocus standiwhen they made their complaint under the Act.
Determination on Jurisdiction of the Court to hear the Claims
As a preliminary matter the Court considered if the Complainants in this case were
“fixed-term employees” within the meaning of Section 2 of the Act when they referred their claim under Section 14 of the Act; whether the claims under the Act were statute barred and whether the Complainants were estopped from proceeding with their claims.
For all of the reasons set out above, the Court is satisfied that the Complainants in this case do not havelocus standito bring the within proceedings and accordingly, the Court has no jurisdiction to hear or determine the appeal of the Rights Commissioner’s decision.
Accordingly, the appeal is disallowed.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
4th April, 2013______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.