Our article today focuses on time limits under employment legislation, as discussed in a couple of recent cases.

Introduction

The bringing of civil legal proceedings is generally subject to time limits. In the main this is to ensure that matters are not prejudiced by undue delay and that timely recollection of events may enable the legal system to work effectively.

Civil proceedings in the courts are generally regulated by a Statute of Limitations, legislation that prescribes a variety of specific time limits for a range of legal actions. Each piece of employment legislation in turn also sets out a time limit for a claim to be brought. In the Republic of Ireland this limit is generally six months from the date of the act that gives rise to the claim, whether that be, for example, an alleged act of discrimination, a deduction from wages or a dismissal.

A significant exception occurs under the redundancy payments legislation where a lump sum may be claimed within 52 weeks of the date of dismissal. In turn the minimum notice legislation prescribes no time limit at all, so it is generally accepted that the statute of limitation period of six years for contract actions applies to minimum notice claims.


Extensions and Inconsistencies

The picture becomes more complex when potential extensions of the relevant time limits are taken into account. In an amendment to the redundancy payments legislation in 1971, the time period for a lump sum to be claimed was extended from 52 to 104 weeks where the claimant could show ‘reasonable cause’ for the failure to claim within the prescribed time limits.

In 1991, 1993 and 1994 respectively, the payment of wages, unfair dismissals amendment and maternity protection legislation allowed for an extension of the claim period from 6 to 12 months where ‘exceptional circumstances’ prevented the making of the claim within the normal six month period.

Much employment legislation since, for example, the working time, part time work and fixed term work Acts of 1997, 2001 and 2003 allow for an extension from six to 12 months where ‘reasonable cause’ is shown. Other Acts on the other hand, for example, the terms of employment and the parental leave legislation in 1994 and 1997 respectively, do not allow for any extension of the relevant time limits.

This lack of consistency can be bewildering for employer and employee alike.


Exceptional Circumstances or Reasonable Cause?

It is commonly accepted that the test for showing that ‘exceptional circumstances’ prevented the making of the claim is far more onerous than showing ‘reasonable cause’. This email summarises two recent decisions of the Labour Court on appeal where the question of what amounts to ‘reasonable cause’ to trigger an extension of the claim period was closely examined, with contrasting outcomes.

These cases are:
* Rezmerita Ltd and Morkis/Uciechoswka
* Public Appointments Service and Conway


1. Rezmerita Ltd and Morkis/Uciechoswka (WTC/09/26, Determination No. DWT1017, 22nd February 2010).

The claimants in this case were shop assistants in the respondent’s chain of stores. They both alleged a number of infringements of the Organisation of Working Time Act 1997 including a failure to compensate for Sunday working, a failure to provide for paid annual leave and public holiday entitlement and in one of the claimant’s cases, a failure to provide daily rest breaks. Their claim before a Rights Commissioner failed and they both appealed to the Labour Court.

During evidence at the hearing, a Director of the respondent company disputed the claimant’s length of service and contended that both were part-time as opposed to full-time employees as they had claimed. She also denied the alleged infringements of the Act but accepted that the respondent had not kept the necessary records to demonstrate their compliance with the legislation, as neither she nor her fellow directors were familiar at that time with Irish employment law and practice. She stated however that written rosters were prepared and posted in each shop and at the end of each week the hours worked were recorded on a spreadsheet. Copies of these were submitted in evidence. The claimants on the other hand submitted their own hand-written records of the hours that each had worked. It was clear that there was a direct conflict of evidence between these accounts.

The Court reiterated that Section 25 (1) of the Act requires an employer to keep records of compliance with the legislation. S.25 (4) further provides that where an employer fails to keep such records, the onus will be on that employer in any proceedings under the Act to show such compliance. It further emphasised that Statutory Instrument 473/2001 - the Organisation of Working Time (Records) (Prescribed Forms and Exemptions) Regulations - sets out the precise form in which such records are to be kept on a weekly basis.

Where such records are not kept in electronic form, they must also be signed by employees. The Court went on to state that ‘where statutory records are not maintained the employer is faced with the burden of rebutting what is in effect a presumption of non-compliance’.

Taking into account the conflicting evidence given by the claimants and the respondent and their demeanour in giving their accounts, the Court concluded that on the balance of probabilities, the respondent’s evidence did not go far enough to discharge the onus of showing compliance. NOTE: It should be said in passing that there are thousands of employers in Ireland who do not comply with these precise requirements and who are vulnerable to similar findings.

Turning to the question of the applicable time limits, the Court observed that in principle it could only compensate the claimants for infringements of the legislation that had occurred in the six months immediately prior to the making of the complaint. However, the legislation allowed for the extension of the time limit to 12 months where reasonable cause was shown and the claimants had applied for such an extension. The Court noted that the test for deciding whether reasonable cause existed was set out in the case of Cementation Skanska and Carroll (October 2003) where the Court held that the claimant must show that there are reasons which both explain the delay and afford an excuse for it. Such an explanation must be reasonable and there must be a causal link between the circumstances cited and the fact of the delay.

In this case, the claimants (both migrant workers) gave evidence that they were initially unaware of their entitlements under the Act. They argued that the Employment Regulation Order (ERO) for the Retail and Allied Grocery Trades sector applied to their employment and had their employer displayed a copy of that order at their place of work as required, they would have been aware of their rights and would have acted sooner. They also pointed out that the respondent had failed to provide them with pay slips or a statement of their terms of employment.

The Court noted that normally ignorance of one’s legal rights cannot provide a justifiable excuse for delay in bringing a complaint. However, it concluded that the respondent had a duty under industrial relations legislation to inform employees of the terms of the ERO and this was particularly important in the case of non-Irish workers. It decided that the decisive criterion in deciding whether to extend time was reasonableness and in the circumstances of this case, it was reasonable to allow an extension. Compensation could therefore be awarded in respect of infringements of the Act going back 12 months rather than six months from the date of the complaint. The claimants were awarded €2300 and €2150 in compensation respectively.


2. Public Appointments Service and Conway (FTC/09/15, Determination No. FTD101, 15th February 2010).

The claimant in this case appealed to the Labour Court a finding by a Rights Commissioner (RC) that he had presented his complaint of less favourable treatment under the Protection of Employees (Fixed-Term Work) Act 2003 outside the six month time limit provide for under the Act and that it was not appropriate in the circumstances to allow for an extension of the time limit to 12 months.

The claimant was a retired civil servant who had been appointed by the respondent to act as an interviewer on an occasional basis. The fees he received for this work were reduced to take account of the State pension he was in receipt of. The respondent believed that this work was carried out by the claimant under a contract for services, i.e. as an independent contractor. However, the claimant sought to clarify his employment status with the Department of Social and Family Affairs in March 2008.

In May 2008, a Deciding Officer of the Department found that the claimant was employed under a contract of service for the purposes of the Social Welfare Acts, i.e. as an employee, for each individual engagement that he undertook for the respondent. Following this ruling, the claimant brought a complaint under the 2003 Act to the effect that he was a fixed-term employee being remunerated at a lower rate than a comparable permanent employee.

The Court noted that his complaint was made in July 2008, almost a year after the last occasion that he had worked for the respondent. The claimant however argued that an extension of time was justified as he could not have pursued his claim until the Department of Social and Family Affairs had determined his employment status. The Court again referred its own conclusion in the Cementation Skanska and Carroll case, in particular the requirement that the reasonable cause for the delay must, as a matter of probability, have effectively prevented the claim being made in time.

It concluded that in this case, the existence of a dispute as to whether the claimant was or was not an employee was not an impediment to the initiation of a claim. Indeed, it noted that in many claims under employment legislation, the question of employment status is a preliminary issue that must be determined. It further noted that the claimant only referred the question of his employment status some six weeks after the time limit for making a complaint had elapsed. He could not therefore logically claim that his failure to present a claim during the normal six month period was due to the fact that he was awaiting a decision on his employment status. The Rights Commissioner’s decision was affirmed.