FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : UNIQUE DIARY PRODUCTIONS LTD (REPRESENTED BY MC INNES DUNNE) - AND - NIALL HOMAN (REPRESENTED BY EMILY - JANE HOMAN) DIVISION : Chairman: Mr Haugh Employer Member: Ms Doyle Worker Member: Mr Hall |
1. Appeal Of Adjudication Officer Decision No: ADJ-00007256 CA/00011266-001/003
BACKGROUND:
2. An Adjudication Officer hearing took place on 6 September 2017 and a Decision was issued on 16 November 2017. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 22 Dec 2017 in accordance with section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 28 March and 3 July 2018.
DETERMINATION:
Background to the Appeal
This matter came before the Court by way of an appeal brought by Mr Niall Homan (‘the Complainant’) against two decisions of an Adjudication Officer (ADJ-00007256/CA-00011266-001 & CA-00011266-003, dated 16 November 2017) under the Organisation of Working Time Act 1997 (‘the Act’). The Adjudication Officer directed Unique Diary Productions Limited (‘the Respondent’) to pay the Complainant €500.00 in compensation for a breach of section 15 of the Act. The Complainant’s Notice of Appeal was received by the Court on 22 December 2017. The Court sat on 28 March 2018 and again on 3 July 2018 to consider the within appeal and a number of related appeals.
The Complainant alleges that he was regularly required to work in excess of the statutory maximum working week and that he was not afforded adequate rest breaks. He also alleges that the Respondent failed to retain adequate records of his working time as required by the Act.
At the outset of the hearing the Respondent raised the issue of the time-period encompassed by the complaint under the Act. It was accepted by both Parties that the initial complaint under the Act was received by the Workplace Relations Commission on 11 May 2017 and that, therefore, the relevant six-month reference period commenced on 12 November 2016. It was further agreed (without prejudice to any submissions that the Respondent intended to make in defending the Complainant’s appeal under the Unfair Dismissals Act 1977) that the Complainant had ceased to be an employee of the Respondent no later than 1 January 2017, as the Respondent had continued to pay him up until 31 December 2016.
It was accepted by the Parties that the Complainant had made an application before the Adjudication Officer, pursuant to section 41(8) of the Workplace Relations Act 2015, to extend the period for bringing his claim under the Act. That application was refused. His representative made a similar application before the Court. However, nothing that could be considered to amount to reasonable cause for the delay as comprehended by the established jurisprudence of this Court was proffered in support of the Complainant’s application which was accordingly refused by the Court.
Having regard to the foregoing, the Court determined that the period encompassed by the within appeal is 12 November 2016 to 1 January 2017. The Complainant’s representative conceded that no breach of either section 13 or section 15 of the Act had occurred in that period. She also informed the Court that she accepted that the Court has no express jurisdiction under the Act in relation to an employer’s obligation to retain specified records of employees’ working time.
Decision
Having considered the Parties’ written and oral submissions, the Court determines that the within appeal fails. The decision of the Adjudication Officer is, therefore, set aside.
The Court so determines.
Signed on behalf of the Labour Court
Alan Haugh
MK______________________
9 July 2018Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.