UD1264/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                 CASE NO.

                                                                                                                        UD1264/2012

Employer         -           appellant

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

Employee        -           respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr L. Ó Catháin

Members:     Mr D. Hegarty

                    Ms H. Kelleher

heard this appeal at Cork on 27th January 2014

Representation:

_______________

Appellant:       Mr John Barry, Management Support Services, The Courtyard,

                        Hill Street, Dublin 1

Respondent:    Independent Workers Union, 55 North Main Street, Cork

Summary of Evidence

This case came before the Tribunal by way of an employer appeal of the Rights Commissioner Recommendation ref: r-093696-ud-10/DI under the Unfair Dismissals Acts, 1977 to 2007.

The Rights Commissioner Recommendation is dated the 14^th of July 2011. The Rights Commissioner did not serve notice on the employer at the correct address. The company only became aware of the case and recommendation when the Circuit Court enforcers called to the company premises in July 2012 to collect the award made by the Rights Commissioner. The company did not receive notification of the Circuit Court case.

The appeal form was submitted to the Tribunal on the 17^th of August 2012. The company are appealing the decision although they paid the award to the employee when the Circuit Court enforcers called to the premises.

The employee was not present at the hearing. According to the employee’s representative she cannot be contacted or located; she no longer resides at the address on record and is no longer a member of the Union.

The employee worked as a cleaner for the company. In on the 16^th of November 2009 the employee requested 2 weeks holidays to commence on the 24^th of November. This request was refused as she had used all of her holiday entitlement for the year. The employee then informed the company that if the holidays were not approved that she would be taking the time off as sick leave. As a result of this statement the employee was asked to attend a disciplinary meeting on the 18^th of November where she confirmed she intended on being sick for the time off she requested. The employee submitted medical certificates covering the period from the 21^st of November 2009 to the 8^th of January 2010. When she returned to work she was informed that she would not be rostered for work until she provided a medical certificate stating she was fit to return to work. The employee said she would provide that letter. On Thursday of that week the employee sent a resignation letter to the company and requested her P45.

Determination

The Rights Commissioner failed to serve notice on the correct company address resulting in the company only being notified of the Recommendation in August 2012, the Tribunal, therefore accept jurisdiction to hear this appeal.

The Tribunal accept the evidence of the company and find that the appeal of the Rights Commissioner Recommendation ref: r-093696-ud-10/DI under the Unfair Dismissals Acts, 1977 to 2007 succeeds. The Rights Commissioner Recommendation is upset.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)