FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : FRESHCUT FOOD SERVICES LTD (REPRESENTED BY PENINSULA BUSINESS SERVICES (IRELAND) LTD) - AND - MR DMITRIJ KARPENKO (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision r-144087-wt-14/EH.
BACKGROUND:
2. The Worker and the Employer appealed the Rights Commissioner's Decision to the Labour Court on the 24th & 31st October, 2014 respectively. A Labour Court Hearing took place on 9th January, 2015. The following is the Labour Court's Determination:
DETERMINATION:
This is an appeal by Dmitrij Karpenko (the Claimant) and a cross-appeal by Freshcut Food Services Limited (the Respondent) against the decision of a Rights Commissioner in the Claimant’s claim under the Organisation of Working Time Act 1997 (the Act).
Background
The Claimant was employed by the Respondent from 15thJuly 2013 until 28thFebruary 2014. He presented a claim on 15thApril 2014 alleging certain contraventions of the Act. Before the Rights Commissioner the Claimant applied for and was granted an extension of time so as to allow his claim to cover the entire period of his employment.
The claims before the Rights Commissioner related to alleged contraventions of sections 16 and 17 of the Act. The Rights Commissioner found that the Respondent has contravened s.16 of the Act but that s.17 had not been contravened. The Rights Commissioner awarded the Claimant compensation in the amount of €500 for the contraventions that he found to have occurred.
The Claimant’s appeal is confined to the quantum of the award of compensation. The Respondent appealed against the decision of the Rights Commissioner to grant an extension of time and against the finding of liability for a breach of s.16 of the Act.
Findings
Extension of Time
The reason advanced on behalf of the Claimant for the delay in presenting his claim was that the Respondent had not informed him of his rights under the Act. In effect the Claimant position is that he was unaware of his legal rights and that his ignorance in that regard both explains and excuses the delay in presenting his claim.
While ignorance on the part of an employee of his or her statutory rights may explain a delay in instituting proceedings under the Act it cannot excuse a delay. InMinister for Finance v CPSU and Ors[2007] 18 ELR 36 the High Court held that ignorance of one’s legal rights, as opposed to the facts giving rise to those rights, cannot be accepted as an excuse for not observing a statutory time limit.
By application of that principal the Court cannot accept that an extension can be granted in this case. Accordingly the decision of the Rights Commissioner to grant such an extension is set aside.
Section 16
Section 16(2) of the Act provides: -
Without prejudice tosection 15, an employer shall not permit a night worker, in each period of 24 hours, to work—
- (a) in a case where the work done by the worker in that period includes night work and the worker is a special category night worker, more than 8 hours,
(b) in any other case, more than an average of 8 hours, that is to say an average of 8 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—
(i) 2 months, or- (ii) such greater length of time as is specified in a collective agreement that for the time being has effect in relation to that night worker and which stands approved of by the Labour Court undersection 24.
- The days or months comprising a reference period shall, subject to subsection (5), be consecutive days or months.
Subsection (5) of the section deals with how the reference period referred to in paragraph (b) of subsection (2) is to be applied. It provides: -
A reference period shall not include—
- (a) any rest period granted to the employee concerned undersection 13(2) (save so much of it as exceeds 24 hours),
(b) any rest periods granted to the employee concerned undersection 13(3) (save so much of each of those periods as exceeds 24 hours),
(c) any period of annual leave granted to the employee concerned in accordance with this Act (save so much of it as exceeds the minimum period of annual leave required by this Act to be granted to the employee),
(d) any absences from work by the employee concerned authorised under theMaternity Protection Act, 1994, or theAdoptive Leave Act, 1995, or
(e) any sick leave taken by the employee concerned.
The Claimant in this case was a night worker within the statutory meaning of that term and the Respondent duty in relation to his working time is defined by s16(2)(b) of the Act.
The effect of paragraph (a) and (b) of this subsection is that where an employee receives two consecutive rest days (as, for example, a five over seven day working week) only one of those rest days is reckonable as part of the reference period. The practical effect of this provision is that one period of 24 hours rest in every week should be included in the divider so as to produce the average daily hours in the reference period.
Applying the provisions of s.16 of the Act to the records of the Claimant’s working time produced by the Respondent, it is clear to the Court that there was no contravention of that section. Accordingly the decision of the Rights Commissioner on this point is set aside.
Determination
The Claimant’s appeal is disallowed. The Respondent’s cross-appeal is allowed in its totality.
Signed on behalf of the Labour Court
Kevin Duffy
13th December, 2015______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.