The complainant in this case was employed by the respondent as a Non-Consultant Hospital Doctor (NCHD) specialising in Gynaecology and Obstetrics from October 2011 to July 2013. His complaint to a Rights Commissioner (RC) under the working time legislation that the respondent had infringed a number of provisions of the European Communities (Organisation of Working Time) (Activities of Doctors in Training) Regulations, SI 494/2004 related to breaks, rest and hours of work succeeded and he was awarded €3,000 in compensation. 

His application to the RC to grant an extension of time in order to enlarge the time period encompassing the respondent’s infringements of the Act failed. He appealed against this decision and also against the level of compensation awarded to him.

Section 27 (4) of the Organisation of Working Time Act 1997 provides that a RC may not entertain a complaint after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. Under subsection (5), this time period could be extended by the RC up to a further 12 months if he or she was satisfied that the failure to present the complaint within that period was due to reasonable cause. If the maximum extension was to be permitted, this meant in effect that contraventions of the Act over an 18 month period could be included in the complaint. 

It should be noted, however, that this is set to change as Section 41 (8) of the recently enacted Workplace Relations Act 2015, provides that an adjudication officer of the newly established Workplace Relations Commission may only entertain a complaint after the 6 month period has expired within a further 6 months where reasonable cause is shown (see Legal Island email No 1321 for more detail).

On appeal, the complainant’s representative argued that his claim should have been lodged in November 2012 as opposed to 22nd April 2013 and sought an extension for this period. The reasons for the delay were stated to be the excessive hours the complainant was required to work which, amongst other things, meant that he was not in a position to take legal advice and which led to a period of three weeks sick leave due to work-related exhaustion in November 2012. 

It was submitted that these circumstances amounted to reasonable cause to trigger the extension. The respondent’s representative on the other hand argued that the respondent had regularly engaged with the complainant concerning grievances he had with his contract since October 2012. The three week period of sick leave referred to was paid by the respondent and the complainant’s hours of work were reduced at his request in March 2013. There was, therefore, no justification for the delay in bringing the complaint.

* Extending the time limit

The Court reiterated that the test for reasonable cause had been set out in many previous decisions starting with the Cementation Skanska v Carroll case (WTC 0338, October 2003). In brief, this case established the principle that it is for the complainant to show that there are reasons which both explain the delay and afford a reasonable excuse for it. 

It had been argued on behalf of the complainant that his claim should have been brought in November 2012 so as to include the period from June 2012 when he had also worked in excess of the permitted hours. However, the Court noted that in November 2012, the complainant had already been engaging with the respondent in relation to concerns about his working hours. 

Nonetheless, he delayed a further five months before bringing his claim. The test in the Cementation case suggests that a short delay may require only a slight explanation whereas a long delay may require more cogent reasons. In these circumstances, the Court could not accept that the complainant had adequately explained and justified the delay of five months.

* Appropriate level of compensation

The complainant submitted that the redress awarded by the RC did not adequately reflect the ‘extensive, systemic and deliberate’ breaches of the legislation over a considerable period of time which had a detrimental effect of the complainant’s health. 

His representative referred not only to the right to compensation for breach of the directive but also to the complainant’s right under Article 47 of the EU Charter of Fundamental Rights to an effective remedy where rights are violated. She cited the seminal 1984 Court of Justice decision in the Von Colson case that awards of compensation in order to be effective and have deterrent effect must be adequate in relation to the damage sustained and must amount to more than purely nominal compensation. She also cited the Court’s own decision in Connaughton &Sons Landscaping v Stolarczyk (DWT 12 107) that a significant award over and above the economic value of an entitlement was appropriate where there had been a deliberate and conscious breach of an employee’s rights. 

The respondent’s representative, on the other hand, submitted that the RC award was appropriate as the complainant had not suffered any economic loss as a result of the breaches. She also argued that the EU Commission had recognised the complexity of compliance with the working time rules for NCHD’s and that the Labour Relations Commission (LRC) itself had brokered an agreement between the Irish Medical Organisation and the HSE that took into account the systemic difficulties faced in implementing the Directive.

The Court noted that the breaches of the Act were not at issue in this appeal and it was satisfied that the complainant was persistently required to work in excess of the maximum permitted by the Act and was deprived of adequate rest breaks. It also observed that the respondent did react to the complainant’s grievances in March 2013, removing him from on-call duties and reducing his hours to 39 per week. 

It also noted that the situation generally regarding excessive working hours of NCHD’s was being addressed via the LRC agreement but that this agreement post-dated the complaints. Talking into account the case law and the circumstances of the case, it believed that ‘the award made by the Rights Commissioner is disproportionate to the gravity of the contraventions found to have occurred’. The award of compensation was increased from €3,000 to €20,000.

Full case decision:
http://www.workplacerelations.ie/en/Cases/2015/June/DWT1560.html