SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
BALLINALARD TRANSPORT LTD
(REPRESENTED BY KENNEDY FREWEN O'SULLIVAN SOLICITORS)
- AND -
Chairman: Ms Jenkinson
Employer Member: Ms Cryan
Worker Member: Mr McCarthy
1. Appeal of Rights Commissioner's Decision r-136290-wt-13/GC.
2. The Employer appealed the Rights Commissioner's Decision to the Labour Court on 16th July, 2014. A Labour Court Hearing took place on 29th October, 2014 and 7th April, 2015. The following is the Labour Court's Determination:
This is an appeal under Section 28(1) of the Organisation of Working Time Act, 1997, (the Act) by Ballinalard Transport Limited against Rights Commissioner's Decision r-136290-wt-13/GC, 10thJune 2014.
Mr Earnest Jakimavicius brought a complaint before a Rights Commissioner alleging breaches of Section 19 and 21 of the Act by his former employer Ballinalard Transport Limited. The Rights Commissioner noted that the claim was submitted eight months after his employment terminated and decided to allow an extension of time under Section 27(5) of the Act. The Rights Commissioner found that the claims were well founded and awarded €900.00 compensation.
For ease of reference the parties are referred to as they were at first instance. Hence Mr Earnest Jakimavicius is referred to as “the Complainant” and Ballinalard Transport Limited is referred to as “the Respondent”.
The Complainant did not attend the hearings of the appeal which took place on 29thOctober 2014 and 7thApril 2015.
The Complainant was employed by the Respondent from 18thOctober 2011 until his employment ceased on 22ndNovember 2012. The Complaint was received by the Rights Commissioner on 29thJuly 2013.
Summary of the Respondent Case
Mr Rowan Kennedy Solicitor, Kennedy Frewen O’Sullivan Solicitors, submitted that the Rights Commissioner and the Court on appeal did not have the jurisdiction to hear the case as the claim was submitted out of time and there were no reasonable grounds to extend the time. He submitted a copy of a letter from the Complainant’s legal representative, Kingston & Co. Solicitors, dated 26thJuly 2013, addressed to the Workplace Relations Commission enclosing the Complainant’s Complaint Form under the Act. The letter states that Kingston & Co had difficulty downloading the Form and that they had made contact with the Commission’s offices on 7thMay 2013.
Mr Kennedy submitted to the Court that it was apparent from the correspondence that the Complainant had the benefit of legal advice on 7thMay 2013, which was prior to the expiration of the six month period and yet the claim was not submitted until 26thJuly 2013 as they were unable to download the form on a number of occasions from the internet. He submitted that even if there was a genuine technical difficulty, then a delay of a day or two would be reasonable, however, not a delay of two months. In such circumstances he submitted, that an extension of time should not be granted by the Court.
Conclusions of the Court
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 received by the Rights Commissioner on 29thJuly 2013. 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 30thJanuary 2013, and as the Complainant’s employment terminated on 22ndNovember 2012 there can be no contravention of the Act in the six month period prior to the date of claim. 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 test for deciding if reasonable cause is shown for the purpose of the Act was considered by the Court inCementation Skanska (Formerly Kvaerner Cementation v CarrollLabour Court Determination WTC0338 . Here the Court said :-
- It is the Court’s view that in considering if reasonable cause exists, it is for the Complainant 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 Complainant 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 Complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.
It is well settled that it is for a Complainant seeking an extension of time to both explain the delay and put forward a reasonable excuse for the delay. The Complainant did not attend the appeal hearing, and in any event the Court is not satisfied that the excuse for the delay contained in correspondence from his legal representatives meets the standard set inCementation, accordingly the Court does not extend the time for the bringing of the claim.
Accordingly, the Decision of the Rights Commissioner is set aside and the appeal is allowed.
Signed on behalf of the Labour Court
20th April, 2015______________________
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.