CAS161

FULL RECOMMENDATION

CA/16/1

DETERMINATIONNO.CAS161

r-146465-ca-14/SR

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
COMPETITION ACTS, 2002 TO 2014

PARTIES :

SR TECHNICS IRELAND LIMITED
(REPRESENTED BY A & L GOODBODY)

- AND -

KEVIN CARROLL

DIVISION :

Chairman: Mr Foley
Employer Member: Ms Cryan
Worker Member: Ms Tanham

SUBJECT:
1. Appeal Of Adjudication Officer Decision No r-146465-ca-14

BACKGROUND:

2. The Worker referred his case to the Labour Court on the 7th of April 2016, in accordance with the Competition Acts, 2002 to 2010. 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 Schedule 3 to the Competition Act, 2002-2010 (the Act) in his complaint of penalisation by SR Technics (the Respondent) contrary to Section 50(3) of the Act.

The Appellant’s employment with the Respondent was terminated on 3^rdJuly 2013. The Appellant made his complaint under the Act on 2^ndJuly 2013.

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 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 that would be determinative of the appeal in its entirety.

The Appellant’s complaint to the Rights Commissioner / Adjudication Officer was made on 2^ndJuly 2013.

The Act at Schedule 3 provides in relevant part as follows

6. For the purposes of this Schedule—

(a) subsections (3) to (6) and subsection (7)(a) of section 7 of the Act of 1994 shall apply in relation to a complaint presented under this Schedule as they apply in relation to a complaint presented under subsection (1) of that section 7, with the following modifications, namely—
- (i) the deletion in that subsection (3) of all the words from “if it is presented” to the end of that subsection and the substitution of “unless it is presented to him within the period of 12 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 from the expiration of the said period of 12 months, as the rights commissioner considers reasonable”,

The Court sought evidence from the Appellant of any act or acts of penalisation which he might contend had taken place within the time period set out in the Act at Schedule 3. The Appellant did not put before the Court detail of any such act or acts of penalisation within that period.

Section 50(3) of the Act in relevant part provides as follows

50 (3) An employer shall not penalise an employee for having formed an opinion of the kind referred to in subsection (1) and communicated it, whether in writing or otherwise, to the Authority if the employee has acted reasonably and in good faith in forming that opinion and communicating it to the Authority.

The appellant stated to the Court that he may have communicated by ‘phone with the Authority before the making of his complaint under the Act on 2^ndJuly 2013. He was able to confirm that he had made written contact with the Authority on a date after the making of his complaint under the Act on 2^ndJuly 2013. The Court has no clarity from the Appellant therefore that a protected act as described in Section 50(3) has occurred.

The Appellant made no application to the Rights Commissioner / Adjudication Officer for an extension of time. The Appellant made no such application to the Court.

In all of the circumstances the Court must find that the complaint of penalisation within the time limit set out at Schedule 3 of the Act has not been made out.

Determination

The Court determines that the complaint of the Appellant has not made out a complaint of penalisation in contravention of the Act at Section 50(3). 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.