EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD10/2016
TE10/2016
CLAIMS OF:
Jurij Bondarenko
- Claimant
for implementation of the recommendation of the Rights Commissioner
in the case of:
Keegan Quarries Limited
- Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2015
TERMS OF EMPLOYMENT (INFORMATION) ACT 1994 TO 2014
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. J. Revington S.C.
Members: Mr. F. Moloney
Mr. J. Dorney
heard this claim at Dublin on 23rd September 2016 and 24th November 2016 and 30th January 2017
Representation:
Claimant: Ms M. Moran Solicitor, Richard Grogan, Solrs, 16/17 College Green, Dublin 2
Mr. Richard Grogan, Richard Grogan, Solrs, 16/17 College Green, Dublin 2 (30th January 2017)
Respondent: Ms D. Ní Mhuircheartaigh BL instructed by: Mr. P. Moore Solicitor, Malone & Martin, Solicitors, Market Street, Trim, Co Meath
This case came before the Tribunal where the appellant (employee) was seeking implementation of the Rights Commissioner recommendation under the Unfair Dismissals Acts, 1977 to 2007- reference: r-148922-ud-14/EH and the Terms of Employment (information) Acts, 1994 to 2014 – reference: r-147008-te-14/EH.
Background:
The claimant was employed as a General Operative. He took claims under the Unfair Dismissals Acts, 1977 to 2007 and the Terms of Employment (Information) Act, 1994 to 2014 to the Rights Commissioner against two companies – the named respondent and a related company - KP Ltd.
On the 30th of September 2015 two sets of identical determinations were issued by the Rights Commissioner in respect of the claims. One issued to KP Ltd (ref: r-152216-ud-14/EH) and were sent to KP Ltd’s solicitor’s office and the other issued to the named respondent in these proceedings (ref: r148922-ud-14/EH) and were sent to the respondent’s office.
At this time the respondent and the legal representative for KP Ltd (who also represented the respondent in these proceedings) were not aware, at that time that two sets of determinations issued against two related companies.
On the 10th of November 2015 the determination against KP Ltd was appealed to the Labour Court. The appeal was heard over two days. The representative for the respondent stated that at this hearing the claimant opted to fully engage with the Labour Court, including:
- Participating in an agreement between the parties as to remuneration levels based on payslips from KP Ltd.
- Presenting evidence to the effect that he was employed by KP Ltd an unlawfully dismissed by KP Ltd as his employer:
- Allowing clarification by him that KP Ltd was the correct employer.
On the 1st of June 2016 the claimant filed a T1D form to the Employment Appeals Tribunal to implement the Rights Commissioner recommendations in respect of the respondent in this proceedings under the Unfair Dismissals Acts, 1977 to 2007 and the Terms of Employment (Information) Acts, 1994 to 2014.
Determination:
The Employment Appeals Tribunal heard legal submissions on three occasions. The Tribunal was informed by the representative for the said the matter had been brought to the attention of the Rights Commissioner who heard a case or cases. The Tribunal was further informed that the Rights Commissioner had indicated that he was unable to amend his order or orders. The Rights Commissioner has issued two decisions because he could not determine which party was the correct employer.
Section 8(3) (a) of the Unfair Dismissals Act 1977 provides:
“A rights commissioner shall not hear a claim for redress under this Act if […] the Tribunal has made a determination in relation to the claim […]”
The effect of this provision is that the Rights Commissioner has no statutory power to make a determination in relation to a claim where there has already been a determination, or to make two determinations in relation to one claim. In this case if there is a separate unappealed determination of the Rights Commissioner against this named respondent (KQ Ltd)., any such determination is ultra vires the Rights Commissioner as it already made a determination against KP Ltd.
In these circumstances, if there is a separate and unappealed determination against KQ Ltd, any such determination is unenforceable.
Under all the circumstances the Employment Appeals Tribunal declines to make an implementation orders sought.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)