EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Sherry Yan (claimant 1) UD1480/2013
RP902/2013
Sean Foley (claimant 2) UD1490/2013
RP901/2013
Against
Belohn Limited (in liquidation)
Belohn Limited (in liquidation)
(respondent)
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms J. McGovern B.L.
Members: Mr F. Moloney
Mr M. O'Reilly
heard this claim at Dublin on 8th October 2014
Representation:
_______________
Claimant(s) : David O'Brien B.L., Law Library, Four Courts, Dublin 7
Respondent(s) : Gavin Simons, Amoss Solicitors, 26 Burlington Road,
Ballsbridge, Dublin 4
The determination of the Tribunal was as follows:
The following claims were withdrawn at the outset of the hearing:
RP902/13 and RP901/13.
The respondent raised a preliminary issue in respect of the Tribunals jurisdiction to hear the claims. It is submitted that the claims were lodged outside the 6 month time limit allowed by section 8 of the Unfair Dismissal Act 1977. The applicants are seeking to rely on section 9 of the Unfair Dismissal (Amendment) Act 1993 and are submitting that the Tribunal should exercise its discretion by extending the time limit for a further 6 months.
The respondent is a limited liability company which primarily operated a public house in Dublin City centre known as Foleys. The respondent is wholly owned by Merrow Limited, the claimants being the sole directors of the latter company. Counsel for the applicants indicated that the public house was a family run business for a number of years. Claimant 2, whose parents previously owned the pub, worked as a barman since 1983 on and off in addition to his role as a solicitor. Claimant 1 became a book keeper for the company in more recent times. It was further submitted that the claimants were owners ‘on paper only’ and that claimant 2’s parents retained control of the respondent and made all relevant decisions in relation to the company. Both claimants submit therefore that they were employees of the respondent.
On 11th October 2012 a receiver was appointed by Bank of Scotland plc over the respondent. Counsel for the claimants submitted that at this juncture they considered themselves ‘illegally evicted’ from the premises and summarily dismissed from their employment with the respondent as at that date. This is the date set out in the Workplace Relations Form as being the date of dismissal and confirmed by Counsel at the within hearing. The claims herein were submitted to the Tribunal on the 17th September 2013 which is therefore outside the aforementioned 6 month time limit but within the 12 months provided for under section 9 of the 1993 Act.
By application of claimant 2 to the High Court the receiver appointed on 11th October 2012 was subsequently set aside by order of the High Court and the claimants re-entered the public house in or about March 2013. The respondent company then petitioned the High Court for interim examinership and was granted full examinership protection on 17th April 2013. The claimants however withdrew their support for the examinership as they were unwilling to agree to a proposed third party investor into the company and a liquidator was appointed to the respondent in July 2013.
Counsel for the claimants relied on the case of Byrne v Quigley (UD 762/1994) and submitted that the above are exceptional circumstances and so ‘out of the ordinary’ that the Tribunal should take same into consideration when deciding whether or not to extend time for a further 6 months. When queried by the Tribunal as to why the claims for unfair dismissal were not initiated during the 6 months following 11th October 2012 Counsel indicated on behalf of his clients that the claimants thought that they could set aside the receiver (which they successfully did) and trade out of the situation. They did not think it was appropriate to file the claims (and indicated that they had received legal advice to this effect) and therefore chose not to do it. The claims were ultimately issued after the respondent went into liquidation in July 2013.
It was submitted on behalf of the respondent that no exceptional circumstances that could have prevented the claimants issuing their claims during the 6 months following 11th October 2012 have been presented to the Tribunal. Furthermore, during this time while claimant 2 had proceedings before the High Court seeking the removal of the receiver, there was no certainty that the appointment of the receiver would be set aside therefore the claimants could have issued the within claims within that timeframe.
Determination
Having heard the submissions made on behalf of both claimants and the respondent the Tribunal finds that the claims submitted are out of time. In deciding whether or not to exercise its discretion to extend time the Tribunal must be satisfied that the ‘exceptional circumstances’ raised by the claimants are such that they were prevented from making a claim within the first 6 months from the date of dismissal. Having heard the submissions in this regard the Tribunal does not believe that the claimants were so prevented. In fact it appears that they chose not to issue the claim as they seemed to believe they could trade out of the situation they found themselves in. While the claimants thought that the business had a reasonable prospect of success during the course of the examinership it appears that they withdrew their support for that process resulting in the respondent going into liquidation. The Tribunal believe that the claimants could have, and should have, issued their claims within 6 months of the date of dismissal (11th October 2012) and no satisfactory reason for not doing so has been presented.
The Tribunal exercises its discretion not to extend time and the claims are therefore barred by section 8 of the Unfair Dismissals Act 1977 as amended by section 7(2)(b) of the Unfair Dismissals Act, 1993.
The Tribunal requested and heard submissions from both parties as to whether or not the claimants were employees of the respondent. Given that the Tribunal has exercised its discretion not to extend time in the within claims the matter of whether or not the claimants were employees of the respondent is redundant.
In all of the circumstances the Tribunal does not have jurisdiction to hear the claims under the Unfair Dismissals Acts 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)