UD789/2012, PW260/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                              CASE NO.

EMPLOYEE    – appellant                                                                              UD789/2012

                                                                                                                        PW260/2012

V

EMPLOYER – respondent

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

EMPLOYEE    V

EMPLOYER

under

PAYMENT OF WAGES ACT, 1991

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:         Mr R.  Maguire B.L.

Members:         Mr R.  Murphy

Ms M.  Maher

heard this appeal at Dublin on 6th September 2013

Representation:

_______________

Appellant(s):                

Respondent(s) :           

The determination of the Tribunal was as follows:-

This case came before the Tribunal by way of an employee appealing the recommendation of a Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007, (ref: r-109046-ud-11/JC) and a decision of a Rights Commissioner under the Payment of Wages Act 1991 (ref:r-109048-pw-11/JC).

Preliminary issue:

The appellant confirmed that he had not sent a copy of his appeal to the respondent as set out under section 7(2) b of the Payment of Wages Act 1991.  Accordingly, the Tribunal ruled that it did not have jurisdiction to hear the appeal under that Act.

The Rights Commissioner found that the appellant’s claim under the Unfair Dismissals Acts 1977 to 2007 was made out of time and accordingly the Rights Commissioner did not have jurisdiction to hear the claim.  The Tribunal heard evidence on this preliminary matter.

The appellant last worked for the respondent company on 6^th November 2009.  He brought a claim to the Rights Commissioner Service in May 2011.  On 6^th November 2009 the respondent company held a disciplinary meeting with the appellant to address incidents involving the appellant during his work as a security guard.  On foot of this meeting the appellant received a final written warning by letter of 9^th November 2009.  An email submitted by the claimant from a company manager stated that the company would attempt to find him hours in “a different environment due to his long time in the company.”

The appellant gave evidence that he phoned the office on Monday 9^th or Tuesday 10^th November 2009 enquire about the roster as he had not been informed of his hours the week before.  He did not recall who he spoke to.  That person told him to expect a letter in relation to the disciplinary meeting, which was the letter of 9^th November 2009.  He did not appeal the final written warning as provided for in the letter.  He did not contact the company after that until January 2011 when he contended that he wrote to the respondent to submit his resignation with four weeks’ notice.  He considered this to be the termination of his employment. 

He claimed a social welfare payment in late November 2009.  He visited Crosscare, a housing and welfare service, who provided him with a letter to assist him in his claim for a social welfare payment.  One point in the letter, dated 23^rd November 2009, stated that the appellant “feels he may be the victim of a breach of employment rights legislation and we have provided him with information as regards constructive dismissal and legal advice”.  At some point the appellant also visited a solicitor who informed him that he might be on lay-off.  The appellant gave evidence that he did not contact the respondent company as he did not want to disturb his employer.  He was expecting a call from his employer.

A respondent employee gave evidence that she received a phone call from the appellant in early November 2009 during which he informed her that he was moving to Drogheda and was not willing to travel to work as his petrol expenses were too much.  She did not recall if they discussed jobs.  The next time they spoke was in 2011 when she received a call from a citizen’s information officer who passed the phone to the appellant to talk to her.  The citizen’s information officer told her the call was in relation to unpaid wages and outstanding holiday pay.  She did not know if the company issued a P45 to the appellant.

Determination:

The Tribunal accepts that the respondent company was told that the appellant resigned in early November 2009 by the appellant.  However, even if the appellant’s evidence was accepted in full he was informed by Crosscare on 23^rd November 2009 that he may have a constructive dismissal case but chose not to pursue it until March 2011.  Therefore the Tribunal does not have jurisdiction to hear the appeal as the appellant did not submit his original claim to the Rights Commissioner Service within 6 month, or 1 year in exceptional circumstances, of the termination of employment.  Accordingly, the Tribunal upholds the recommendation of the Rights Commissioner, ref: r-109046. 

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)