PW25/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                   CASE NO.

Ballinalard Transport Limited                                                                                   PW25/2013

                                                - Appellant

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

Antoin Barvir

                                                - Respondent

under

PAYMENT OF WAGES ACT, 1991

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. K. T. O’Mahony BL

Members:     Mr. J. Hennessy

Mr. J. Flavin

heard this appeal at Clonmel on the 9^th September 2014

Representation:

Appellant:       In Person

Respondent:   Ronan Kennedy, Kennedy Frewen O’Sullivan, Solicitors, St. Michael Street,

Tipperary Town, Tipperary

This case came before the Tribunal by way of the appellant (the employer) appealing the recommendation of the Rights Commissioner under the Payment of Wages Act, 1991 (ref. r-122190-pw-12/GC and r-122192-pw-12/GC).

This order should be read in conjunction with PW27/2013 as they were heard in tandem. (Both parties are appealing the Rights Commissioner Recommendation awarding €4,754.00 to the employee.)

The determination of the Tribunal was as follows:

Preliminary Issue

The appellant contended that the Rights Commissioner had no jurisdiction to hear the appeal as it had been initiated more than six months after the respondent’s dismissal.  

The respondent (employee) was employed by the appellant as a truck driver from 2007 until October 2011. His contract dated the 17^th November 2008 stated that he would be paid €110.00 per day. The respondent regularly experienced difficulties regarding shortfalls in his wages. Because of this, in mid-September the respondent gave two weeks’ notice to the appellant/employer, as required by his contract of employment, that he was terminating his employment. He also told the appellant that he was taking his holidays. The appellant required the respondent to work his notice. As part of an arrangement with the appellant the respondent further worked from 7^th to 10^th October 2011. It was common case that this was the last day that the respondent worked for the appellant.

The respondent maintained that his employment with the appellant ended on 24^th October 2011 as he was owed holidays and his P45 stated that 28^th October 2011 was the date of cessation of the employment. The appellant explained that this was because payment was two weeks in hand.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        

Determination:

It was common case that 10^th October 2011 was the last day that the respondent worked for the appellant, having worked his notice and some extra days thereafter by agreement with the  appellant. No arrangement had been made between the parties as to when the claimant could take his annual leave. While the Unfair Dismissal Act 1977 provides that the date of dismissal is the date on which the notice of the termination of the contract of employment expires, there is no such statutory provision in respect of the Organisation of Working Time Act 1997. Accordingly, the contract of employment terminated on 10^th October, 2011.

Section 6 (4) of the Payment of Wages Act, 1191 provides:

           “(4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable.”

           The appeal, having been lodged by the respondent with the Rights Commissioner on 24^th April 2012 under the Payment of Wages Act, 1991, was not within the statutory 6 months- time limit for initiating the claim.  

There was no evidence of any exceptional circumstance which would allow for the extension of the time for initiating the claim. Accordingly, the Tribunal upsets the Rights Commissioners Decision.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)