UD1066/2011

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                                    CASE NO.

Amandio Gabriel        (appellant)

                                                                                                                            UD1066/2011

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

M3 Motorway JV       (respondent)   

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr R. Maguire, B.L.

Members:     Mr F. Cunneen

                   Ms. N. Greene

heard this appeal at Dublin on 26th November 2013

Representation:

_______________

Appellant(s) :              McAlister O'Connor, Solicitors, Abbey Road, Navan, Co. Meath

Respondent(s) :           Maples And Calder, Solicitors, 75 St Stephen's Green, Dublin 2

The determination of the Tribunal was as follows:

It was agreed at the hearing that the named respondent is the correct respondent in this case.

The Appellant in this case began employment on 7 April 2008 and was dismissed on 6 March 2009, when a letter of dismissal was issued to him. Correspondence from the solicitors of the Appellant followed, including an indication of the wish to appeal the dismissal on 20 March 2009, and a meeting took place on 15 June 2009 to examine the timeshteets that had formed the basis of the Appellant’s dismissal.

The Appellant had been hospitalised between 10 and 14 May. Nothing further was done until the Appellant sent an undated letter, stamped as received by the Respondent on 31 August 2009, stating that he wished to appeal the decision to dismiss him.

On 31 October 2009, the Appellant submitted his claim to the Rights Commissioner service.

The Respondent argues that the Appellant is debarred from bringing this claim on two bases. First, it is submitted that the Appellant did not have one year’s service before dismissal. Secondly, it is submitted that the submission to the Rights Commissioner service was outside the 6 month time-limit prescribed in the Unfair Dismissals Acts, and that no exceptional circumstances have been outlined such as would justify an extension of that time limit.

The Appellant submits that the fact that the Appellant sought to appeal his termination meant that he was still in employment up to 15 June 2009. Reliance was placed on Roberts v. West Coast Trains Limited [2004] IRLR 788 as relied upon in Redmond, Dismissal Law in Ireland (2^nd Ed. 2007) at 13.96: “In Roberts v. West Coast Trains Ltd the Court of Appeal held that where an appeal was successful against dismissal, it revied the contract of employment.”

It was submitted that on that basis, the Appellant continued to be an employee at least until after 15 June 2009, and that therefore his appeal was in time, being less than 6 months after his employment was terminated.

Decision of the Tribunal

The Tribunal is not satisfied that, given the conduct of the Respondent, in particular the correspondence of 26 March 2009 indicating that an appeal was pending, together with the meeting of 15 June 2009, the Appellant should not be debarred from having his claim considered timely, under section 8(2)(b) of the Unfair Dismissals Act 1977 as amended. These were such exceptional circumstances as would justify the extension of the time for the submission of the appeal beyond 6 months from the date of dismissal. However, the Claimant did not pursue his appeal after 15 June and the decision to terminate his employment on 6 March 2009 stood.

In relation to the other preliminary point, namely whether the Appellant had one year’s service at the date of dismissal, the Tribunal has considered all of the submissions of both parties. The Tribunal finds that as there was no appeal decision that supplanted or replaced the decision to terminate the employment of the Appellant, contrary to the position in Roberts, the original decision to dismiss ended the Appellant’s employment for the purpose of section 2(1) of the Unfair Dsmissals Act 1977 as amended stood, and therefore, the Appellant did not have 12 month’s service at the date of dismissal.

For the above reasons, the Tribunal does not have jurisdiction to hear this claim. The decision of the Rights Comissioner is varied accordingly.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)