EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
EMPLOYEE, UD570/2012
and
EMPLOYEE, UD571/2012
against
EMPLOYER
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. S. McNally
Members: Mr. P. Casey
Mr. J. Flavin
heard this case in Cork on 9 September 2013
Representation:
_______________
Claimant(s):
Respondent(s):
The determination of the Tribunal was as follows:-
The claimants’ representative confirmed to the Tribunal that his clients were claiming constructive dismissal. When it was put to him that the claims had already been heard by a Rights Commissioner he replied that that preceded his coming into the matter. The Tribunal was concerned that matters heard by a Rights Commissioner could only be heard by the Tribunal if an appeal was sent.
The respondent’s representative stated that the Workplace Relations Complaint Forms had reached the Tribunal more than six months after the end of the claimants’ employment and submitted that there were no exceptional circumstances justifying the delay. It was also submitted that, as a Rights Commissioner had heard the claims, the Tribunal could only hear an appeal but the Tribunal secretariat had confirmed to her that no appeal had been lodged.
The claimants’ representative submitted that the claimants had little knowledge of correct procedures and that six months had passed before he came into the matter. The respondent’s representative repeated that a Rights Commissioner had heard the claims (such that the matter could only come to the Tribunal on appeal). Six months could be extended to twelve for the bringing of first instance claims to the Tribunal but the Tribunal had no discretion to extend the six weeks within which a Rights Commissioner Recommendation could be appealed even where it might have great sympathy for unfortunate complainants.
It was requested on behalf of the claimants that the Tribunal hear the substance of the claims subject to the procedural aspect.
Determination:
Unanimously, the Tribunal finds that it has no jurisdiction under Section 8 subsection 5 of the Unfair Dismissals Act, 1977 as amended by the Unfair Dismissals (Amendment) Act, 1993 which states;
“(5) The Tribunal shall not hear a claim for redress under this Act (except by way of appeal from a recommendation of a rights commissioner)—
(a) if a rights commissioner has made a recommendation in relation to the claim, or
(b)unless, before the commencement of the hearing of the claim, one of the parties concerned notifies in writing—
(i) in a case where the claim has been initiated before a rights commissioner, the rights commissioner, or
(ii) in any other case, the Tribunal,
that he objects to the claim being heard by a rights commissioner. “
There was a hearing before the Rights Commissioner and while The Tribunal has great sympathy for the claimants, the matter was not before the Tribunal by way of appeal from a recommendation of the Rights Commissioner, therefore, the claims under the Unfair Dismissals Acts, 1977 to 2007, fail.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)