FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 11 (1), EUROPEAN COMMUNITIES (PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS) REGULATION, 2003 PARTIES : AER LINGUS LIMITED (REPRESENTED BY ARTHUR COX) - AND - KEVIN CARROLL DIVISION : Chairman: Mr Foley Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal Of Adjudication Officer Decision No r-140164-tu-13/SR
BACKGROUND:
2. The Worker referred his case to the Labour Court on the 7th of April 2016, in accordance with Section 11(1) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulation, 2003. A Labour Court Hearing took place on the 31st of May 2016.
DETERMINATION:
This matter came before the Court by way of an appeal by a Worker (the Appellant) against the decision of a Rights Commissioner / Adjudication Officer made in accordance with the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (the Regulations).
The Rights Commissioner / Adjudication Officer found that the complaint had been made outside the time limits laid down by the Act and that he had no jurisdiction to hear the complaint.
Preliminary issue
The Appellant confirmed that he had never been in the employ of the Respondent. The Appellant has previously made a complaint as regards an alleged breach of the Regulations by the Respondent which was decided by the Employment Appeals Tribunal on appeal.
These undisputed facts raise issues as regards the Appellant’s locus standi to make a complaint under the Act on the one hand and as regards whether the matters before the Court are res-judicata on the other.
The Court decided to consider the issue of the time limits set out in the Act as a preliminary issue. The Court made this decision in the interest of efficiency of process taking account of the decision of the Rights Commissioner / Adjudication Officer and of the fact that if the complaint was found to be outside of the statutory time limit such a determination would be determinative of the appeal in its entirety. In the event that the complaint was determined to have been made outside of applicable time limits the Court will not be required to consider the Appellant’s locus standi in making the complaint or the question as to whether the matters before the Court are res judicata.
The Appellant’s complaint to the Rights Commissioner / Adjudication Officer was made on 4thMay 2014. The Appellant confirmed to the Court that his employment with another employer whose arrangements in 2009 with the Respondent are at the base of the within appeal terminated on 3rdJuly 2013.
The Regulations at Section 10 in relevant part provide as follows
- (6) A rights commissioner shall not entertain a complaint under this Regulation unless it is presented to the commissioner within the period of 6 months beginning on the date of the alleged contravention to which the complaint relates, or where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within that period, such further period, not exceeding 6 months from the expiration of the first-mentioned period, as the rights commissioner considers reasonable.
In all of the circumstances the Court must find that the complaint of a contravention of the Regulations was made outside the period specified in the Regulations for the making of a complaint.
Determination
The Court determines that the complaint of the Appellant was made outside of the time limits set out in the Regulations. The decision of the Rights Commissioner / Adjudication Officer is affirmed. The appeal fails.
Signed on behalf of the Labour Court
Kevin Foley
4th July 2016______________________
JKDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.