PW332/2014

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                 CASE NO.

Sam Dennigan & Co                                                                         PW332/2014

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

Ronan Harrington

under

PAYMENT OF WAGES ACT 1991

I certify that the Tribunal

(Division of Tribunal)

Chairman: Ms. K.T. O’ Mahony BL

Members: Mr. D. Hegarty

               Mr. O. Wills

heard this appeal in Cork on 8 March 2016

Representation:

_______________

Appellant(s):

Mr. Jamie McAuliffe, Donal T McAuliffe, 57 Merrion Square,

             Dublin 2

Respondent(s):

             Ms Deirdre Crowley, Crowley, Solicitors, The Officers Mess,

             Old Fort Road, Ballincollig, Cork

This case came to the Tribunal as an employer appeal under the Payment of Wages Act, 1991, against Rights Commissioner Decision 142985-pw-14JOC. Herein, the appellant will be referred to as the employer and the respondent as the employee.

The decision of the Tribunal was as follows:-

Section 7 (2) (a) and (b) of the Payment of Wages Act, 1991 provides:

An appeal under this section shall be initiated by a party by his giving, within 6 weeks of the date on which the decision to which it relates was communicated to him—

(a) a notice in writing to the Tribunal containing such particulars (if any) as may be specified in regulations under subsection (3) and stating the intention of the party concerned to appeal against the decision, and

(b) a copy of the notice to the other party concerned

The Payment of Wages (Appeals) Regulations No.351/1991 provide:

3. A notice under section 7 (2) in relation to an appeal shall contain—

     (a) the names, addresses and descriptions of the parties to the proceedings to which   the appeal relates,

     (b) the date of the decision to which the appeal relates and the name of the rights commissioner who made the decision, and  

     (c) a brief outline of the grounds of the appeal.

The issue before the Tribunal is whether the employer complied with the requirements set out in section 7 (2) of the Payment of Wages Act.

The Right’s Commissioner’s decision is dated 22 October 2014. The employer’s notice of appeal of the Right’s Commissioner’s decision was lodged with the Tribunal on 18 November 2014. The employee’s position was that he first received the copy notice of appeal in or around 21 January 2015 (when it was forwarded to him the Employment Appeals Tribunal) which is outside the statutory time limit prescribed by the Act. He remembers this because when he received it he copied it and sent it on to his solicitor.

The employer sought to rely on its letter of 14 November 2014, asserting that it contained the notice of appeal. This letter from its HR Manager, was given by its Transport Manager to the claimant. In it the HR Manager stated: “I would like to inform you that an appeal has been lodged with the Employment Appeals Tribunal on the recent Rights Commissioner’s recommendation/decision ref r142955-pw-14.” This letter also required the employee to sign his name “to confirm receipt of this confirmation of appeal.”

The Transport Manager’s evidence was that he handed the employee a sealed envelope from the HR manager and asked him to read and sign the enclosure but the employee took it away to seek advice. The Transport Manager did not see the notice of appeal and could not remember whether the employee opened the envelope in his presence. While the employee did recall getting the employer’s letter of 14 November 2014 he could not remember when, how or from whom he had received it. The letter produced by the employer to the Tribunal does not bear the employee’s signature.

Determination

The Tribunal finds that the employee was given the letter of 14 November 2014 on or around this date.

It further finds that the sealed envelope given to the employee by the Transport Manager did not contain the notice of appeal. The Tribunal bases its finding on this issue on the fact that there was no reference in the letter to the notice of appeal and on the further fact that the documentation furnished by the employer in response to a data request on behalf of the employee, although containing the letter of 14 January 2014, did not contain the notice of appeal.    

The Tribunal considered whether the contents of the letter of 14 November 2014 could constitute compliance with the requirements of section 7 (2) of the Act and regulation 3 of S.I 351/1991. Both provisions in using the word “shall” are expressed in mandatory terms. While some of the requisite information was in the knowledge of the employee the letter did not outline, briefly or otherwise, the grounds of appeal. Accordingly, the letter does not constitute compliance with the Regulations.

The notice of appeal forwarded by the Tribunal to the employee in mid-January 2015 was outside the prescribed statutory time frame. Thus, the Tribunal does not have to consider whether it would otherwise satisfy the requirements of section 7 (2) of the Act.

Accordingly, as the employer was not able to satisfy the Tribunal that the appeal notice was served on the employee by the employer within the required timeframe, the Tribunal does not have jurisdiction to hear the appeal under the Payment of Wages Act.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)