UD1387/2011, PW261/2011

EMPLOYMENT APPEALS TRIBUNAL

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

PAYMENT OF WAGES ACT, 1991

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Ms E. Kearney BL

Members:        Mr T. L. Gill

                        Ms H. Murphy

heard these appeals at Ennis on 10 December 2012

                                              and 17 February 2014

Representation:

_______________

Employer:       Mr Kieran O'Donovan, Dorothy Tynan & Co. Solicitors,

78 O'Connell Street, Limerick           

Employee:       Mr Alan Ledwith BL instructed by Mr Brian Geraghty,

Geraghty & Co. Solicitors, 1 Rosemary Avenue,

           Eyre Square, Galway

This case came before the Tribunal by way of an employer appeal of the Recommendation and Decision of the Rights Commissioner ref: r-072549-ud-08 under the Unfair Dismissals Acts, 1977 to 2007 and ref: r-072550-pw-08 under the Payment of Wages Act, 1991. The appellant shall hereinafter be known as the employer and the respondent the employee.

Preliminary Issue

The Tribunal not being satisfied that the employer had complied with Section 7 (2) (b) of the Payment of Wages Act by putting the employee on notice of its appeal the Tribunal found that there was no jurisdiction to hear the appeal under that Act.

Substantive Issue

Dismissal as a fact being in dispute between the parties it fell to the employee to make his case.

Whilst there was a dispute about the commencement date of the employee’s beginning to work for the employer with the employee’s position being that employment began in September 2005 whereas the employer’s position was that employment began in August 2007. It was common case that the employee was working for the employer in Sixmilebridge over the winter of 2007/2008.

Around April 2008 the employee moved to a restaurant in Cahir and worked there until September 2008 at which time his employment was terminated. The employee’s position was that he had moved to Cahir at the behest of the employer. The employer’s position was that, whilst Cahir was operated by his brother in law, at the time the employee moved to Cahir the employer was not in the jurisdiction and only became aware of the employee’s move to Cahir on his own return to the jurisdiction and furthermore the employer had no proprietary interest in the Cahir operation.

Determination

The crux of the employee’s case was that he was dismissed by the employer in or around September 2008. This was at a time when the employee was working in Cahir. The employee was unable to produce any evidence to show that he was working for the employer when in Cahir. Accordingly, it must follow that the employee was not dismissed by the employer in September 2008 and the claim under the Unfair Dismissals Acts, 1977 to 2007 fails thereby upsetting the recommendation of the Rights Commissioner.  

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)