PW536/2011, PW537/2011

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                             CASE NO.

EMPLOYEE 1 – appellant 1                                                                         PW536/2011

                                                                                                                        WT953/2011

&

EMPLOYEE 2 – appellant2                                                                        PW537/2011      

                                                                                                                        WT954/2011

V

EMPLOYER – respondent

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

EMPLOYEE & EMPLOYEE

V

EMPLOYER

Under

PAYMENT OF WAGES ACT, 1991

ORGANISATION OF WORKING TIME ACT, 1997

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Ms P. McGrath B.L.

Members:        Mr. B. Kealy

Mr N. Dowling

heard this claim at Dublin on 17th April 2013 and 1st November 2013

Representation:

_______________

Appellant(s):               In person

Respondent(s) :           Mr Paul Twomey BL, instructed by:

                                    McKeever Rowan, Solicitors

5 Harbourmaster Place, I.F.S.C., Dublin 1

This case came before the Tribunal by way of two employees appealing the decisions of a Rights Commissioner under the Payment of Wages Act, 1991, (refs: r-112767-pw-11/EH & r-112773-pw-11/EH) and the recommendations under the Organisation of Working Time Act, 1997, (ref: r-112770-wt-11/EH & r-112775-wt-11/EH).

The decision of the Tribunal was as follows:-

The claims were made to the Rights Commissioner on 2^nd August 2011 and therefore the period that may be investigated under the Payment of Wages Act, 1991, is from 3^rd February 2011 to 2^nd August 2011. There are also appeals under the Organisation of Working Time Act 1997 again on foot of complaints made on 2^nd August. A complaint under the Organisation of Working Time Act 1997 must be made within 6 months of the contravention. A Rights Commissioner may extend this to 12 months if the failure to present the complaint within the period was due to reasonable cause. The Rights Commissioner stated that the appellant’s did not seek an extension to the time limit.

The first named appellant stated on his form T1B that he was employed from 8^th February 2010 and that he was still in employment at the time of lodging his claim on 20^th December 2011.

The second named appellant stated on his form T1B that he was employed from 26^th March 2008 and that he was still in employment at the time of lodging his claim on 20^th December 2011.

The Tribunal notes that the appellant 1’s own letter from the Revenue dated 2013 indicates that he was an employee of the respondent in 2008, 2009 and 2010. The letter is silent on 2011 which demonstrates that the Revenue had no knowledge of an employer/employee relationship being in existence in 2011. The appellants accept that they got P45s in early 2011.

The Tribunal affirms the findings of the Rights Commissioner in circumstances where the appellants were not employees for the relevant period and the Rights Commissioner’s finding in this regard were correct. Accordingly the Tribunal upholds the decisions of a Rights Commissioner under the Payment of Wages Act, 1991, (refs: r-112767-pw-11/EH & r-112773-pw-11/EH) and the recommendations under the Organisation of Working Time Act, 1997, (ref: r-112770-wt-11/EH & r-112775-wt-11/EH).

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)