PW465/2013, TE199/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                             CASE NO.

Yellow Pearl Limited T/A Shop Bodyshop Direct – appellant                    PW465/2013

                                                                                                                    TE199/2013

V

John Keenan – respondent

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

John Keenan

V

Yellow Pearl Limited T/A Shop Bodyshop Direct

under

PAYMENT OF WAGES ACT, 1991

TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994 AND 2001

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Mr R. Maguire, B.L.

Members:       Mr E. Handley

Mr N. Dowling

heard this appeal at Trim on 5th June 2014

Representation:

_______________

Appellant(s) :             Mr Paul Brady, Paul Brady & Co Solicitors, 3 Railway Street, Navan, Co Meath

Respondent(s) :          Mr Paul Maccormack, Coyle Kennesdy & MacCormack Solicitors, Thomas Street,

     Castleblayney, Co. Monaghan

This case came before the Tribunal by way of an employer appealing the decision of a Rights Commissioner under the Payment of Wages Act, 1991, ref: r-131281-pw-13/RG and a recommendation under the Terms of Employment (Information) Act, 1994 and 2001, ref: r131283-te-13/RG.

The decision of the Tribunal was as follows:-

This employer appeal from the Rights Commissioner Service was heard together with a direct claim by the employee to the Tribunal under the Unfair Dismissals Acts and Minimum Notice and Terms of Employment Acts ref: ud838.13.

The respondent was employed on 10^th October 2010 as the Cavan/Monahan and Northern Ireland sales representative for a motor parts business. The respondent’s contract of employment identified his salary as €12k plus commission of 8% of cash collected. However, the company chose to pay the respondent €2k per month for the first three months to help him get started and in fact this situation remained for the entirety of his employment.

There were appraisal meetings every three months when the Managing Director told the respondent that he was extending his initial contract. By doing this the Managing Director considered that he was extending the respondent’s probation however he did not tell the respondent this when extending the contract. The Managing Director gave evidence that the respondent signed a new contract at each appraisal which was disputed by the respondent who contended that the only contract he signed was the original one. The respondent’s file went missing from the office after the dismissal and the Managing Director could not produce any of the documents the respondent allegedly signed. The respondent’s employment was terminated on 16^th August 2012.

Determination:

The appeal under the Payment of Wages Act, 1991, was not properly served to the respondent (employee) within 6 weeks’ of receipt from the Rights Commissioner as per section 7(2)(b) of that Act. Accordingly, the Tribunal does not have jurisdiction to hear the appeal and the decision of the Rights Commissioner stands.

The award to the respondent (employee) under the Terms of Employment Act is varied to zero as the breach was to the employee’s financial benefit on a continuing basis.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)