PW685/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                                      CASE NO.

EMPLOYEE                                                                                                             PW685/2012

                        - appellant

against the recommendation of the Rights Commissioner in the case of:

EMPLOYER                                                  - respondent

under

PAYMENT OF WAGES ACT, 1991

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms O. Madden B.L.

Members:     Mr M. Noone

                   Mr J. Flannery

heard this appeal at Portlaoise on 29th October 2013

Representation:

Appellant(s) :

Respondent(s) :

This case came before the Tribunal by way of an appeal by an employee against a decision of the Rights Commissioner under the Payment of Wages Act, 1991 r-118260-pw-11/JT.

The decision of the Tribunal was as follows:-

Background:

The respondent (employee) is seeking an entitlement to pay while on sick leave as a result of an injury on duty.

The respondent is relying on the terms of the Proposal for Organisation Change 2005. Clause 2.7.1 states:

            “Where an Officer is absent due to an injury on duty, the basic salary will be payable together with the appropriate allowances. The additional hours payment for average additional hours liability will be payable on application by the Officer in respect of the period of absence concerned, subject to the requisite management certification of the injury on duty.”

The appellant (employer) cited Circulars 25/78, 1/82 and 6/97 in respect of sick pay entitlement. These circulars stated that sick pay allowance to established staff as full pay during properly certified sick absence is a maximum of six months full pay in one year and half pay thereafter, subject to a maximum of twelve months sick leave in any period of four years or less.

A claim under the Payment of Wages Act, 1991 was brought before the Rights Commissioners on the 24^th February 2012. A decision by the Rights Commissioners was dated the 23^rd August 2012 and received by the appellant in this case on the 27^th August 2012. An appeal of this decision was received by the Employment Appeals Tribunal on the 8^th of October 2012.

Respondent’s Position:

The respondent stated that the appellant had not submitted a copy of the appeal to him in the requisite six-week time limited under Section 7 (2) (b) of the Payment of Wages Act, 1991. Section 2 (a) and (b) states:

            “(2) An appeal under this section shall be initiated by a party by his giving, within 6 weeks of the date on which the decision to which it relates was communicated to him—

(a) a notice in writing to the Tribunal containing such particulars (if any) as may be specified in regulations under subsection (3) and stating the intention of the party concerned to appeal against the decision, and

(b) a copy of the notice to the other party concerned.”

Appellants Position:

The appellant contends they sent a copy of the appeal to the respondent on the 3^rd October 2012 by ordinary post. On the same day they sent a T1B form to appeal the decision of the Rights Commission by courier to the Employment Appeals Tribunal.

Determination:

The Tribunal are satisfied the appellant, in this instance, has not discharged the burden of proof pursuant to Section 7 (2) (b) of the Payment of Wages Act, 1991 and therefore has no jurisdiction to hear the appeal.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)