EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Gerard Warren, UD1127/2012
against
Waterford City Council,
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. N. Russell
Members: Mr. J. Browne
heard this case in Waterford on 7 May 2014
Representation:
_______________
Claimant(s):
There was no attendance at the Tribunal hearing by
Mr Clive O'Regan, Unite The Union,
Keyser Street, Waterford
The employee was represented at the Tribunal hearing by
66 Dame Street, Dublin 2
Respondent(s):
35-39 Ushers Quay, Dublin 8
The determination of the Tribunal was as follows:-
An unfair dismissal claim was received in respect of an employment from late July 2005 to late September 2011. The redress sought was reinstatement or re-engagement. No specifics of the complaint were outlined although it was stated that the reason given for dismissal had been “failure to participate in the grievance”. The relevant box on the claim form was ticked to indicate that there was an employee side objection to the unfair dismissal complaint being heard by a Rights Commissioner.
In an employer response it was confirmed that the employee had been dismissed from late September 2011 but it was added that the case had been heard by a Rights Commissioner in late March 2012.
At the Tribunal hearing it was stated on behalf of the employee that this was an appeal (against Rights Commissioner Recommendation r-118006-ud-11/MMG under the Unfair Dismissals Acts, 1977 to 2007).
It was submitted on behalf of the respondent that an incorrect form had been used and that there was case-law against this.
It was pointed out that it had not been indicated to The Tribunal that what had been lodged was actually an appeal and it was put to the employee’s representative that The Tribunal must be sent notice of an appeal. The employee’s representative replied that her firm had only latterly come on record for the case.
The respondent’s representative contended that there was case-law against the employee’s position. The unfair dismissal legislation allowed for a Rights Commissioner Recommendation to be appealed but not for an unfair dismissal claim to be lodged as if there had never been a Rights Commissioner hearing.
After a recess the employee’s representative acknowledged that there had been no notice of appeal of the abovementioned Rights Commissioner Recommendation. The employee had given instruction to the trade union official who had represented him before the Rights Commissioner. It was submitted that what was before The Tribunal was an effectively an Appeal. The intention had been to appeal on behalf of the employee.
Determination:
The issue of intention in the submission of this matter to the Tribunal is not relevant in this instance. The issue is one of jurisdiction based on the paperwork before the Tribunal.
The Tribunal are bound by statutory provisions in relation to Appeals and does not have a discretion to depart from those provisions.
While the Tribunal does not doubt what has been said for the employee and has sympathy for him the fact of the matter is that the only application before the Tribunal is under Section 8 of the Unfair Dismissals Act, 1977, and is specified to be such at Page 3 of the form submitted.
The Tribunal’s only jurisdiction in the current case would be by way of an appeal under Section 9 of the Unfair Dismissals Act, 1977. No such appeal has been filed.
The form before the Tribunal cannot be treated as a valid appeal notice for the reason already stated and, further, any such notice is required by Section 9 (2) to “state the intention of the party concerned to appeal against the Recommendation”.
The Tribunal has no jurisdiction to hear this matter under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)