INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 25(2), PROTECTION OF EMPLOYEES (TEMPORARY AGENCY WORK) ACT, 2012
NOEL RECRUITMENT CITI NORTH LIMITED
- AND -
GREGORZ OSINSKI,ARKADIUSZ KUCZYNSKI,JAKUB DUDEK
(REPRESENTED BY HOBAN BOINO SOLICITORS)
Chairman: Ms Jenkinson
Employer Member: Ms Cryan
Worker Member: Mr Shanahan
1. Appeal of Rights Commissioner's Decision No's: r-137845/137642/137007-MW-13/JW
2. This case is an appeal by the workers of Rights Commissioner's Decision No's:r-137845/137642/137007-MW-13/JW made pursuant to Section 25 (2) of the Protection of Employees (Temporary Agency Work) Act, 2012. Labour Court hearings took place on 30th June 2015 and 16th October 2015. The following is the Court's Determination:
This is an appeal by Mr Jakub Dudek, Mr Ardadiusz Kuczynski & Mr Grzegorz Osinski against the Decision of a Rights Commissioner in their claim against their employer, Noel Recruitment Citi North Limited, which was inadvertently made under the National Minimum Wage Act 2000 (“the 2000 Act”) instead of under the Protection of Employees (Temporary Agency Work) Act 2012 (“the 2012 Act”). The Rights Commissioner found that he did not have jurisdiction to hear the complaints as they were referred under the incorrect Act.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Jakub Dudek, Mr Ardadiusz Kuczynski & Mr Grzegorz Osinski will be referred to as “the Complainants” and Noel Recruitment Citi North Limited will be referred to as “the Respondent”.
The Respondent is an employment agency. As part of its business it supplied the Complainants as agency workers to Keelings (“the Hirer”).
The Complainants referred their claims under the 2000 Act to the Workplace Relations Commission on 29thAugust 2013( Mr Dudek), 12thSeptember 2013 (Mr Kuczynski) and 18thSeptember 2013(Mr Osinski), a hearing was held on 29thJuly 2014 and the Decision under appeal was issued on 28thOctober 2014.
The Complainants were employed by the Respondent, their employments dates are as follows:-
Mr Dudek from 18thApril 2011 until 25thJuly 2014, Mr Kuczynski from 11thApril 2011until 25thJuly 2014 and Mr Osinski from 14thFebruary 2011 to 25thJuly 2014.
The Respondent is an Employment Agency within the meaning of the 2012 Act. At all times material to this claim the Complainants were assigned to work under the direction and control of Keelings Limited (hereafter the Hirer).
Positon of the Parties
The positions taken by the parties can be summarised as follows: -
- The Complainant’s case
The Complainants used theonline complaintsform on the Workplace Relations Service website in August/September 2013 to refer their claims. They stated that at the time of lodging the complaint there they were under the impression that the only option open to them was to fill in a complaint regarding “pay” was to submit a complaint under the 2000 Act, which they duly did. When completing the complaint form theComplainantsoutlined the details of their complaint. They described how they worked for anagency and they referred to the changes in legislation regarding pay/wages of agency workers. Theyfurther described that from the beginning of 2013 theyreceived rates of pay similar to employees on contractsworking directlyfor the hirer.
Mr Boino submitted that the Complainants should not be penalised for lodging the complaints in the incorrect format under"Pay" yet at the same time they provided clear specifics of the complaint and it must have been reasonablyunderstood that the Complainants were claiming that they were not receivingminimum pay rates as
provided in law for agency workers.
In support of his contention, Mr Boino citedGaelscoil Thulach Na Nog/ Joyce Fitsimons-MarkeyLabour Court Decision EET034 where the Complainant in that case used an incorrect form but indicated the nature of herclaim in her description. The Labour Court made observation that the Equality Authorityfailed to notice the true nature of the applicant's complaint.
Elizabeth StaffordLabour Court Decision AWD142 indicated that notice forms used is an administrative assistance only to the parties and to the Court.It is not a statutory document containing rules of Court.What the Court seeks to determine is whether the document discloses intention to appeal and whether the intention was communicated in writing to the court within the statutory time limit.
The case came up for hearing on 29thJuly 2014, the Rights Commissioner pointed out their error and the Complainants on that same day lodged their complaints under the 2012 Act, this time using the correct form. A Rights Commissioner hearing was heard on 15thFebruary 2015, she held that she did not have jurisdiction to hear the complaints as they were presented outside the time limits provided by Section 25 (4) and (5) of Schedule 2 of the Act. That Decision was also appealed to the Labour Court.
The Respondent’s Position
Mr David Kearney, on behalf of the Respondent accepted that the Complainants had make an error in submitting their complaint forms and stated that the Respondent had no issue with the mistake made as it was evident that the claims were intended to be made under the2012 Act and not under the National Minimum Wage Act, 2000.
Mr Kearney stated that when the Act was signed into law on 16thMay 2012 it sought to ascertain information from the Hirer on the basic working and employment conditions of its direct employees doing work similar to the agency workers in order to ensure that the Respondent complied with the provisions of the legislation. The Respondent stated that based on the information it received from the Hirer it paid the Complainants the same rates of pay and premium payments as paid to direct employees of the Hirer in order to comply with its obligations under Section 6 of the 2012 Act.
In support of his position, Mr Kearney produced a copy of the information supplied to the Respondent by the Hirer.
Court’s Conclusions on the Preliminary Issue – Incorrect Complaints Form Completed by Complainants
As the Respondent has not disputed the application to amend the proceedings to reflect the intention of the Complainants that their complaint before the Rights Commissioner was one under the Protection of Employees (Temporary Agency Work) Act 2012 and not under the National Minimum Wage Act, 2000 and as the Court is satisfied that the specifics of the complaint as detailed in theWorkplace Relations Service online complaintsform clearly related to a complaint being made under the 2012 Act and not the 2000 Act, the Court hereby amends the complaint accordingly.
Preliminary Issue – Timing of Complaints
The claims were lodged in August/September 2013 and alleged a breach of the 2012 Act for the period from February/ March 2012 until 17thDecember 2012, therefore in accordance with the provisions ofParagraph 1(4) of Schedule 2 of the 2012 Act, the complaints are out of time as it provides that a complaint must be referred within a period of six months of the alleged contravention. Mr Boino sought an extension of time in accordance with Section 25(5) of Schedule 2 of the 2012 Act which allows for an extension of a further twelve months where the Court is satisfied that the failure to present the complaint within the six months was due to reasonable cause.
Mr Boino sought theextension of time on the basis that the Complainants were under the assumption that retrospective calculations were being calculated to reflect the improved rates applying to direct employees of the Hirer. The Complainants stated that they were told that by the Respondent that it would take some time to work out calculations before they could be refunded the difference in their wages forthe rest of 2012 and that the payments would be processed in due course. On that basis they waited untilAugust 2013 to lodge their complaints.
Mr Boino produced a copy of correspondence from a competitor agency whose employees were agency workers also assigned to the Hirer in this case. This correspondence showed that having completed a due diligence exercise with the Hirer in respect of the new legislation, the competitive agency agreed to pay its employees assigned to the Hirer an improved hourly basic rate of €9.50 for hours worked with effect from 6thSeptember 2012 and that“any retrospective pay due ….. will be calculated and paid when finalised”.For that reason, coupled with the impression given by the Respondent’s Accounts Officer, the Complainants were late in submitting their claim.
The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination WTC0338 (October 28, 2003)CementationSkanska (Formerly Kvaerner Cementation) v Carroll. Here the Court said: -
- It is the Court's view that in considering if reasonable cause exists, it is for the claimant 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 claimant 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 claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.
The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.
This test imposes a relatively low threshold of reasonableness on an applicant for an extension of time. In all the circumstances presented in this case the Court is of the view that the delay in making the within claim was both explained and justified. Accordingly the Court holds that an extension of time is allowable in this case. Therefore the Court allows the cognisable period for this claim commencing on 28thFebruary 2012 until 29thAugust 2013 in respect of Mr Dudek; from13th March 2012 until 12thSeptember 2013 in respect of Mr Kuczynski and from 19thMarch 2012 until 18thSeptember 2013in respect of Mr Osinski.
Mr Boino outlined in detail the outstanding monies owed to the three Complainants for the period covered by the claim:-
- Mr Dudek €3,193.83
Mr Kuczynski €1,712.54
Mr Osinski €2,308.17
The Court notes that the methodology of arrears as outlined to the Court was not challenged by the Respondent.
The Court acknowledges that the Respondent acted in good faith, based on the information supplied by the Hirer in its attempts to comply with the 2012 Act, and when matters were clarified at the hearing, it accepted that an error had been made and the Complainants’ were not paid the same rates of pay and Saturday premium as that paid to comparable direct employees of the Hirer during the period covered by the claim. Therefore the Court upholds the Complainant’s appeal.
The Court hereby Determines that theComplainants’ complaints are well founded and directs theRespondent to pay the following amounts:-
Mr Dudek €3,193.83
Mr Kuczynski €1,712.54
Mr Osinski €2,308.17
The Decision of the Rights Commissioner is set aside and substituted with the terms of this Determination.
Signed on behalf of the Labour Court
5th November 2015______________________
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.