EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Julita Dabrowska – appellant UD932/2015
v
AQF Limited – respondent
against the recommendation of the Rights Commissioner in the case of:
Julita Dabrowska
V
AQF Limited
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms O. Madden B.L
Members: Mr F. Cunneen
Mr N. Dowling
heard this appeal at Dublin on 19th July 2016
Representation:
Appellant: Mr Vernon Hegarty
SIPTU
Workers' Rights Centre, 8th Floor, Liberty Hall, Dublin 1
Respondent: Mr Patrick Purcell BL instructed by:
Patrick O'Sullivan
O'Sullivan O'Dowd Solicitors
1 Blackhall View, Blackhall Place, Dublin 7
Background:
This case came before the Tribunal by way of an employee appealing the Correcting Order of a Rights Commissioner reference: r-128210-ud-12/JW.
The determination of the Tribunal was as follows:-
At the outset of the hearing, a preliminary application was made on behalf of the respondent company. In particular, it was argued that the Employment Appeals Tribunal does not have jurisdiction to hear the within claim on the basis that it is not properly before the Tribunal. Two distinct points were raised by the respondent’s representative:
That the Rights Commissioner erred in substituting a company (RR) for the respondent pursuant to section 39 of the Organisation of Working Time Act, 1997 and
That, as a result the claim as against the respondent is now statute barred
Section 39 (2) of the Organisation Working Time Act, 1997 provides that
A decision (by whatever name called) of a relevant authority under this Act or an enactment referred to in the Table to this subsection that does not state correctly the name of the employer concerned or any other material particular may, on application being made in that behalf to the authority by any party concerned, be amended by the authority so as to state correctly the name of the employer concerned or the other material particular.
Section 39 (3) of the Organisation of Working Time Act, 1997 provides that
The power of a relevant authority under subsection (2) shall not be exercised if it would result in a person who was not given an opportunity to be heard in the proceedings on foot of which the decision concerned was given becoming the subject any requirement or direction contained in the decision.
From the facts, it appears that the Rights Commissioner, having heard the case as against the company (RR) on the 5th April 2013, issued a recommendation dated the 23rd April 2013. Thereafter, the appellant’s representative wrote to the Rights Commissioner indicating that RR was the incorrect respondent to the proceedings. Pursuant to this correspondence, the Rights Commissioner re-issued the Recommendation by letter dated the 17th July 2015 replacing RR with the respondent company. This was done in circumstances where the matter had already been heard by the Rights Commissioner in the absence of the respondent as they had not been put on notice of the hearing.
Section 39 (4) provides
If an employee wishes to pursue against a person a claim for relief in respect of any matter under an enactment referred to in subsection (2), or the Table thereto, and has already instituted proceedings under that enactment in respect of that matter, being proceedings in which the said person has not been given an opportunity to be heard and
-
(a) the fact of the said person not having been given an opportunity to be heard in those proceedings was due to the respondents name in those proceedings or any other particular necessary to identify the respondent having been incorrectly stated in the notice or other process by which the proceedings were instituted, and
(b) the said misstatement was due to inadvertence,
then the employee may apply to whichever relevant authority would hear such proceedings in the first instance for leave to institute proceedings against the said person (“the proposed respondent”) in respect of the matter concerned under the said enactment and that relevant authority may grant such leave to the employee notwithstanding that the time specified under the said enactment within which such proceedings may be instituted has expired:
Provided that that relevant authority shall not grant such leave to that employee if it is of opinion that to do so would result in an injustice being done to the proposed respondent.
At no point was the respondent given the opportunity to be heard before the Rights Commissioner. The Tribunal are of the view that this was more than a case of inadvertence and therefore are satisfied that the effect of substituting one respondent for another respondent by the Rights Commissioner did cause injustice to the proposed respondent, contrary to the provisions of Section 39 of the Organisation of Working Time Act, 1997. To uphold the Recommendation of the Rights Commissioner in such circumstances would result in the Tribunal going well beyond its powers.
Furthermore, in light of this view, it follows that the within claim is Statute barred. The appellant was dismissed on the 5th December 2012 and any claim as against the respondent must have been initiated within 12 months of that date, the earliest date the claim was initiated against the respondent was the 20th August 2015 when the recommendation of the Rights Commissioner was appealed to the Tribunal.
In all the circumstances, the Tribunal must decline jurisdiction to hear the claim against the respondent pursuant to the Unfair Dismissals Act 1977 to 2007. Thus the Tribunal dismisses the appeal of the Rights Commissioner Recommendation reference: r-128210-ud-12/JW.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)