FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : PATRICIAL TOSCANO TRADING AS RISTORANTE ROSSINI (REPRESENTED BY MCNULTY, BOYLAN & PARTNERS) - AND - OTYLIA MIKA (REPRESENTED BY MAGUIRE MCCLAFFERTY) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal of a Decision of a Rights Commissioner R-051441-MW-07/POB.
BACKGROUND:
2. In 2007 Ms Mika took a case to the Rights Commissioner under the National Minimum Wage Act, 2000 claiming that she was underpaid during the period of her employment with the above named Company, Ristorante Rossini.
Following a Rights Commissioner hearing on the 11th October, 2007 the Rights Commissioner found against her. The Decision was signed and dated the 19th November, 2007. Ms Mika claims that she did not receive the Decision until the 7th February, 2008 and that it was unsigned and undated.
The Company maintains that it received the Decision of the Rights Commissioner, signed and dated, on the 20th November, 2007.
The Worker, Ms Mika, appealed the Decision of the Rights Commissioner to the Labour Court on the 18th February, 2008, in accordance with Section 27(1) of the National Minimum Wage Act, 2000. A Labour Court hearing took place on the 16th July, 2008 to deal with the preliminary issue of whether or not the appeal was received within 6 weeks of the date on which the decision was communicated to the party.
DETERMINATION:
The decision of the Rights Commissioner dated the 19th November 2007 reference r-051441-mw-07/POB was appealed by the worker. The appeal was filed with the Court on the 18th February 2008.
Section 27(1) of the National Minimum Wage Act, 2000 states as follows:
"A party to a dispute who is aggrieved by a decision of a rights commissioner under Section26 may, within 6 weeks of the date on which the decision was communicated to the party under section 26(1), by written notice of appeal containing such particulars, if any, as may be determined by the Labour Court, appeal to the Labour Court against that decision."
There are no provisions in the Act for extending the time for appeals to be lodged. The Court refused to entertain the appeal and advised the appellant accordingly. Subsequently, Mr. Szulc, Solicitor for the Appellant asserted that the worker did not receive a copy of the Rights Commissioner’s decision until 7th February 2008. In support of his contention he submitted a copy of the envelope in which the decision was delivered, along with the registered post reference number and details from An Post tracking service.
Mr. Cunningham, Solicitor for the Respondent disputed this assertion and stated that the Respondent had received a copy of the decision shortly after the date it was signed (19th November 2007).
The Court decided to make enquiries of the Rights Commissioner Service (“the Service”) in order to discover how the Rights Commissioner’s decision was communicated to the parties.
The Court held a preliminary hearing on 16th July 2008.
Prior to the preliminary hearing a copy of a “Briefing Note” prepared by the Service was provided to both parties. This note gave details of the chain of events in relation to communicating the Decision, to each of the parties. At the commencement of the hearing, the Court invited the parties to make submissions on the admissibility of the appeal of the Rights Commissioner’s decision.
Having considered the submissions of the parties, and for reasons, which follow, the Court is satisfied that it has the jurisdiction to hear the appeal under Section 27 of the Act.
The evidence shows that the Rights Commissioner’s Decision was dated 19th November 2007 and that the Service sent out copies of the Decision to both parties by registered post on 19th November 2007. However, it also shows that the address to which the worker’s copy was sent was in Co. Cork, whereas by that time she has moved address to Co. Clare. It also shows that the Service were aware of her move to Co. Clare prior to the date of the Rights Commissioner’s hearing, as Mr. Szulc produced a copy of a letter from the Service dated 3rd October 2007 addressed to her Co. Clare address. In any event, An Post’s tracking service confirms that the registered letter dated 19th November 2008 from the Service was not delivered to the worker.
The Appellant told the Court that through the medium of her daughter (as her English was not proficient), she telephoned the Service on 12th December 2007 requesting a copy of the Decision. She said that further telephone calls requesting a copy of the Decision were made on 19th December 2007; between the Christmas and New Year period and in January 2008. She said that it was not until a further call was made on 7th February 2008 that details of her current address in Co. Dublin were taken and a copy of the Decision (unsigned and undated) was sent out to her. Hence, Mr. Szulc maintained that the worker was only “communicated” with after the 7th February 2008 and therefore the appeal was made (eleven days later) within the time allowed.
Having examined all the documentary evidence the Court is satisfied that there is nothing to support an assertion that the worker was “communicated” with in relation to the Rights Commissioner’s decision prior to 7th February 2008. On the contrary, all the evidence points to the position that the Decision was communicated to the worker after 7th February 2008 and the appeal was made within 6 weeks of that date. Therefore, the Court does have jurisdiction to hear the appeal.
The Court will now proceed to hear the substantive aspects of the appeal.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
29th July, 2008______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.