UD441/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                             CASE NO.

Robert Cunningham – appellant                                                                    UD441/2013

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

Diana Klagisa – respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Mr D. Hayes BL

Members:        Mr J. Horan

                        Mr N. Dowling

heard this appeal at Dublin on 3rd April 2014

Representation:

_______________

Appellant(s):               In person

Respondent(s):            Ms Deirdre Costello BL, instructed by:

Mr Arthur Denneny

C Grogan & Company, Solicitors, Main Street, Clane, Co Kildare

The determination of the Tribunal was as follows:-

This case came before the Tribunal by way of an employer appealing the recommendation of a Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007, ref: r- 102778-ud-10/JC.

Preliminary Issue:

The was a preliminary issue in regard to whether the appeal was lodged with the Tribunal within the required 6 week limit allowed under the Act. The Rights Commissioner communicated her recommendation on 8^th January 2013. The appellant wrote to the Tribunal on 12^th February 2013 and indicated his intention to appeal this decision (a copy of the recommendation was attached). Importantly, the address of the respondent was not contained in this correspondence or enclosed recommendation. The Tribunal wrote to the appellant and asked him to complete an enclosed application form. The appellant was told that his appeal must be lodged within six weeks of the Rights Commissioner’s recommendation being given. There was a subsequent delay on the appellant’s part and the form T1B was not received by the Tribunal until the 12^th April 2013.

Section 3 of the Unfair Dismissals (Claims and Appeals) Regulations, 1977 (S.I. No 286/1977) states:

(a) the name and address of the person bringing the claim or appeal,

(b) the name and address of the employer or employee, as the case may be, concerned,

(c) the date of commencement of the employment to which the notice relates,

(d) the date of the dismissal to which the notice relates, and

(e) the amount claimed by the said person to be the weekly remuneration of the said person in respect of the said employment calculated in accordance with regulations under section 17 of the Act.

Section 9 of the Unfair Dismissals Act, 1977, states:

(2) An appeal under this section shall be initiated by a party by giving, within 6 weeks of the date on which the recommendation to which it relates was given to the parties concerned, a notice in writing (containing such particulars (if any) as may be specified in regulations under section 17 of this Act for the purposes of section 8 (8) thereof) to the Tribunal and stating the intention of the party concerned to appeal against the recommendation and a copy of the notice shall be given to the other party concerned within the said period of 6 weeks.

The Tribunal received a letter from the appellant which indicated an intention to appeal but the address of the employee was not included, or, less importantly in our mind, weekly remuneration. A blank appeal form was sent to the appellant which he returned to the Tribunal in April 2013 indicating that he had been suffering from an illness. While the Act provides for a delay in exceptional circumstances when lodging a direct claim, it does not allow for this when making an appeal. The Regulations do not require that the appeal be made using the Tribunal’s template form. However, the difficulty created in construing the letter of 12^th February 2013 as a notice of appeal is the absence of the address of the employee, which inhibited the Tribunal from notifying the other party as set out in section 9(2). The consequence of this omission was that the respondent could not know that the recommendation in her favour was being appealed until approximately double the time delimited by statute had expired. This was not, therefore, a minor or inconsequential breach of Regulation 3.

Unfortunately the Act which gives the Tribunal its jurisdiction specifies how appeals are to be made and this document does not comply. Accordingly, the Tribunal has no jurisdiction to hear the appeal.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)