UD409/2012, PW172/2012

 EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

PAYMENT OF WAGES ACT, 1991

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Mr E. Murray

Members:     Mr D. Hegarty

                     Mr D. McEvoy

heard these appeals at Cork on 24 October 2013

Representation:

Appellant: 

                      In person

Respondent:

The determination of the Tribunal was as follows:

These cases came before the Tribunal with the appellant/employee appealing against both a recommendation of a Rights Commissioner R-117149-UD-11/JOC under the Unfair Dismissals Acts and against a decision of a Rights Commissioner R-114716-PW-11/JOC under the Payment of Wages Act, 1991.

The appellant was employed as a quality engineer on a fixed-term contract which commenced on 16 August 2010 and was due to finish on 12 August 2011. The contract provided that the Unfair Dismissals Acts would not apply to a dismissal consisting only of the expiry of the term specified.

The appellant’s fourth child was born on 10 October 2010 and his last day working prior to a period of parental leave was on 12 October 2010. On 15 October 2010 another of the appellant’s children was diagnosed with a brain tumour from which, sadly, she was not to recover. In order to seek specialised treatment for his sick child the appellant, with the knowledge and approval of the respondent, relocated himself and his family to the United States from 2 December 2010.

On 25 November 2010 the Human Resource business partner (HR) provided the appellant with two “to whom it may concern” letters. The first of these provided that his position with the respondent would be available on his return from the US. The second provided that the appellant would continue to be paid during his time spent in the US. The respondent continued to pay the appellant until February 2011. In the event the appellant never returned to work with the respondent. The respondent wrote to the appellant on 13 July 2011 informing him that his employment would terminate on 12 August 2011 in accordance with the terms of the fixed-term contract.

On foot of the second letter of 25 November 2010 which confirmed that the appellant’s salary would continue to be paid while he was in the US the appellant lodged a complaint under the Payment of Wages Act that the stopping of his pay after February 2011 represented an illegal deduction. At the Rights Commissioner hearing on 25 January 2012, in a decision issued on 7 February 2012 the Rights Commissioner, who had granted the appellant an extension of time to lodge the claim beyond the six-month period after which the appellant’s pay was stopped, found that the appellant’s complaint was not well founded.

Preliminary Issues

The respondent’s position was that the appellant had not complied with Section 7 (2) (b) of the Payment of Wages Act which provides

An appeal under this section shall be initiated by a party by his giving, within 6 weeks of the date on which it was communicated to him –

a)……………………

b) a copy of the notice to the other party concerned

The appellant accepted that he had not complied with this onerous and mandatory provision of the Act as he was unaware of it at the time he lodged the appeal whilst in the US.

The respondent’s position was further that the appellant did not have the requisite one year’s continuous service required in order to pursue a claim under the Unfair Dismissals Acts. The appellant’s position was that the effect of the first letter from HR on 25 November 2010 was to extend his contract of employment until his return from the US and that as this occurred in September 2011 this was by then 55 weeks, in other words more than one year, after the employment commenced.

Determination

Regardless of the tragic circumstances in which the appellant found himself, ignorance of the onerous and mandatory provision contained in Section 7 (2) (b) of the Payment of Wages Act does not allow the Tribunal to exercise any discretion in respect of non-compliance. It must follow that the Tribunal has no jurisdiction to hear the appeal under Section 7 (2) (b) of the Payment of Wages Act, 1991.

In respect of the Unfair Dismissals Acts the reference in the first letter of 25 November 2011 to the appellant’s position with the respondent being available on his return from the US must be construed as referring the position to which he was appointed on 16 August 2010 and which was to end on 12 August 2011. There is nothing in this letter which refers to any extension of the contract. The Tribunal is satisfied that the employment ended on 12 August 2011 and that at the end of the employment the appellant did not have the requisite one year’s service in order to pursue a claim under the Unfair Dismissals Acts. Additionally the contract was fixed-term in nature and contained a clause that provided that the Unfair Dismissals Acts would not apply to a dismissal consisting only of the expiry of the term specified. For these reasons the Tribunal is satisfied that there is no jurisdiction to hear the appeal under Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)