EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
EMPLOYEE, - claimant UD2242/2011
P2/2011
PW497/2011
against the recommendation of the Rights Commissioner in the case of:
EMPLOYER - respondent
Under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MATERNITY PROTECTION ACT 1994 AND 2004
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. L. O Cathain
Members: Mr. P. Casey
Mr. D. McEvoy
heard this case in Cork on 12 June 2013 and 17 September 2013
Representation:
Appellant(s) :
Respondent(s) :
The determination of the Tribunal was as follows:-
This case came to the Tribunal as an employee appeal under unfair dismissal, maternity protection and payment of wages legislation against Rights Commissioner Decisions r-108331-ud-11/EH, r-108347-mp-11/EH and r-108348-pw-11/EH respectively.
The background to this case was that the claimant had been dismissed from her employment on 22 October 2010 and had presented her claim to the Labour Relations Commission in the weeks after 21 April 2011 which was the last date on which she was entitled to claim within the six months that followed her dismissal.
An extension was sought to the six-month time limit on the grounds that the claimant had been unwell during pregnancy. Her general practitioner was not present at the Rights Commissioner hearing and no medical certificate was available. She had had postnatal problems after the birth of her first child. It was alleged that she had not been mentally or physically able to make her claim within the required first six months after termination of her employment. Shortly after her dismissal she went to Citizen’s Advice and got claim forms but she then went to her employer who scorned her to the point that she did not make a claim as she allegedly believed that she needed her employer’s consent to make a claim.
The claimant then decided to await the birth on 9 March 2011 of her second child before making her claim as she had not previously been well enough. She consulted a solicitor on 29 April 2011 and a claim was lodged.
The employer’s position was that the appellant could not show that exceptional circumstances had prevented the employee from claiming in the first six months after her job ended. It was argued that she had been well enough to go to Citizen’s Advice and to see her former employer and that no medical evidence had been presented.
The Rights Commissioner declined to grant the extension of time because he was not satisfied that sufficient exceptional circumstances had been shown. An appeal to the Tribunal was lodged on behalf of the employee. This was contested by the employer.
At the Tribunal hearing it was stated that the appeal against Rights Commissioner Decisions r-108331-ud-11/EH was being proceeded with but that the appeals against Rights Commissioner Decisions r-108347-mp-11/EH and r-108348-pw-11/EH were not being proceeded with.
At the resumed hearing on the 17 September 2013 the Tribunal heard evidence from the claimant’s GP. The claimant had a difficult pregnancy and was diagnosed as having a low lying placenta. The medical evidence was that because of the diagnosis she was pre-occupied and it was a source of anxiety preventing her from lodging the documentation required. The witness stated that the condition required her to rest but could not confirm if she was unfit to work. The claimant’s baby was born on the 9 March 2011. In August 2011 the claimant was diagnosed with suffering from post natal depression.
Determination:
The appeals against Rights Commissioner Decisions r-108347-mp-11/EH under the Maternity Protection Acts, 1994 and 2004, and against r-108348-pw-11/EH under the Payment of Wages Act, 1991, are deemed to have been withdrawn because the employee proceeded under unfair dismissal legislation.
Having carefully considered the evidence in this case, the Tribunal finds that the appeal against Rights Commissioner Decision r-108331-ud-11/EH under the Unfair Dismissals Acts, 1977 to 2007, the claimant failed to establish to the satisfaction of the Tribunal that exceptional circumstances existed in the relevant period which prevented her filing the claim within the required statutory time limit. Accordingly the Tribunal uphold the decision of the Rights Commissioner and the appeal fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)