EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
John Crowe PW127/2014 TE89/2014
t/a Timothy Crough WT177/2014
against the recommendation of the Rights Commissioner in the case of:
Carl Hennessy
Under
PAYMENT OF WAGES ACT, 1991
TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994 AND 2001
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr P. O'Leary B L
Members: Mr L. Tobin
Mr D. Thomas
heard this appeal at Dublin on 23rd October 2014
This case came before the Tribunal by way of an appeal by the former employer against a recommendation by a Rights’ Commissioner references r-134416-pw-13/EH, r-134417-te-13/EH, and r-134418-wt-13/EH
Representation:
Appellant : In person
Respondent: In person
The decision of the Tribunal was as follows:
This appeal together with a direct claim from the respondent under the Unfair Dismissals Acts was heard interchangeably by the Tribunal.
The respondent requested that the members of the Tribunal inform him of their entitlement to sit as members of the Tribunal in hearing this matter. The chairman explained how the composition of the Tribunal is established and how each member thereof is appointed.
The respondent then made an application that the matters of which the Tribunal had seisin should be heard in camera. The reason given by the respondent for this application is that he did not want his affairs and business to become public knowledge. He also sought an assurance that the evidence and determination of this case and others not be placed in any form or forum accessible to the public. The claimant informed the Tribunal that he wished the hearing to be in public. The Tribunal retired to give consideration to the application and having done so, on resumption, informed the parties that there was no prejudice attached to the respondent in these matters and refused the application. The chairman asked if the papers to be used in the cases had been exchanged. The respondent said that he refused to accept papers given to him prior to the hearing by the claimant as it was too late.
The respondent then requested an adjournment in order to prepare for the hearing. The claimant stated that he had brought two witnesses to give evidence and wanted his cases to be heard on that day. The Tribunal adjourned to give consideration to that application. In giving due consideration to the application the Tribunal noted the contents of the file and noted that an adjournment had been applied for and granted to the respondent on the 24th July 2014 in the Unfair Dismissal claim which case was originally listed for a full hearing scheduled for 30 July 2014 on the basis that he was not aware he was facing an unfair dismissal case and was not prepared for it.
On resumption of the hearing the Tribunal refused the application in this instance. At this stage the respondent stated that he had three appeals to answer. The chairman informed him that there were four cases to be heard today, the three appeals from the Right Commissioner and the Unfair Dismissal appeal. The respondent said he knew nothing of the latter. The Tribunal informed him that he had been sent a notice of all the cases. The respondent then requested that the Tribunal adjourn the unfair dismissal case and he would be prepared to proceed with the three appeals from the Rights Commissioners. The Tribunal gave the claimant the opportunity to reply and he again requested the Tribunal to hear all the cases. The Tribunal adjourned to give consideration to this application.
On resumption of the hearing the Tribunal informed the parties that they would hear all the matters before it. The respondent then informed the Tribunal that he was too ill to proceed with the hearing in respect of the unfair dismissal case but would go ahead with the three appeals from the Rights Commissioners. He also stated that he was prepared to pay the claimant’s witnesses for coming to the hearing. In support of his illness the respondent produced to the chairman a short letter but excluded others from seeing the document.
When the Tribunal affirmed their intention to proceed with the hearing the responded left the hearing again saying that he was too ill to proceed. The Tribunal proceeded with the hearing. During the hearing the respondent opened the door of the hearing room and again stated that he was too ill.
Determination:
The Tribunal, in its consideration of all the applications made by the respondent, took into consideration the rules of fair procedures and in particular that of “audi alterem partem” and noted that it was required to give the parties the opportunity of being heard. It noted that the adjournment obtained by the appellant on the 24th July 2014 referred to above was given to him to afford him an opportunity of preparing for the unfair dismissal case in particular. The Tribunal is satisfied that the appellant was given more than adequate consideration in this case. It was also aware of the principle of “justice delayed is justice denied” and it was not convinced that the appellant was too ill to proceed with the hearing. Each party to a matter must be treated fairly and it would have been unjust to the respondent not to have proceeded in the appeals.
The appeals under the Payment of Wages Act, 1991, the Terms of Employment (Information) Act, 1994 and 2001, and the Organisation of Working Time Act, 1997 are therefore dismissed for lack of prosecution.
Accordingly, the Tribunal upholds and re-affirms the recommendations of the Rights’ Commissioner under the above Acts and awards the respondent €1,587.60 under the Payment of Wages Act, 1991, €1,750.00 under the Terms of Employment (Information) Act, 1994 and 2001, and €352.80 under the Organisation of Working Time Act, 1997.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)