UD1032/2015, MN514/2015

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD1032/2015

MN514/2015

CLAIM(S) OF:                                                                                            

Agnieszka Nowak   

-          Claimant                                                             

Against

Intesa Sanpaolo Life Limited

-          Respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms O. Madden B.L.

Members:     Mr. L. Tobin

                     Mr. M. O'Reilly

heard this claim at Dublin on 21st December 2016

Representation:

Claimant:         Mr. Peter Nowak, C/O 5 St Marys Court, Eastwall, Dublin 3                    

Respondent:    Mr. Adrian Twomey, Advokat Compliance Limited, Merrythought House, Templeshannon, Enniscorthy, Co Wexford

The determination of the Tribunal was as follows:-

The representative for the respondent raised preliminary issues in respect of the jurisdiction of the Employment Appeals Tribunal to hear the claims under the Unfair Dismissals Acts, 1977 to 2007 and the Minimum Notice and Terms of Employment Acts, 1973 to 2005.

Preliminary Issue No. 1

1   The respondent contended that by virtue of section 101(2)(b) of the Equality Act 1977 as amended the Tribunal had no jurisdiction to hear the claim under the Unfair Dismissals Acts 1977 to 2007.

Summary of Facts                

The claimant’s employment terminated on the 20^th of August 2015 (as stated on her form).

On the 18^th of August and the 4^th of September 2015 the claimant, referred a case to the Equality Tribunal pursuant to section 77(1) of the Employment Equality Act, 1977 as amended by the 1998 Equality Act, claiming compensation for alleged discrimination in her employment.

The Adjudication Officer / Equality Officer heard the claimant’s complaint on the 25^th of July 2016. In its decision dated the 4^th of October 2016 the Adjudication Officer / Equality Officer dismissed all of the claimant’s complaints including her complaint that she had been dismissed in circumstances amounting to discrimination.

Preliminary Issue No. 2:

The second preliminary issue related to the Tribunal’s jurisdiction to hear the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2007 when it was received by the Employment Appeals Tribunal on the 1^st of October 2015.

The representative for the respondent contends that the Workplace Relations Act 2015 came into effect on the 1^st of October 2015 which repealed section 11 of the Minimum Notice and Terms of Employment Acts 1973, which was provided for the referral of disputes in relation to minimum notice to the Employment Appeals Tribunal.

Determination:

Preliminary Determination Regarding Issue No. 1:

Section 101(2) of the Equality Act 1977 as amended (which was in force at the time the claimant made her claim to the Workplace Relations Commission on the 18^th of August and 4^th of September 2015) provides:

“Where an individual has referred a case to the Director (of the Equality Tribunal) under section 77(1) and either a settlement has been reached by mediation or the Director has begun an investigation under section 79, the individual –

(a)   Shall not be entitled to recover damages at common law in respect of the case, and

(b)   If he or she was dismissed before so referring the case, shall not be entitled to seek redress (or to exercise, to continue to exercise, any other power) under the Unfair Dismissals Acts 1977 to 1993 in respect of the dismissal unless the Director, having completed the investigation and in an appropriate case, directs otherwise and so notifies the complainant and respondent”.

The Tribunal finds that the claimant is not entitled to seek redress under the Unfair Dismissals Acts as she had been dismissed before she referred her case to the Equality Tribunal and an investigation under the Equality Acts having been commenced and completed and the Director did not direct to the contrary.

Accordingly, the Tribunal has no jurisdiction to hear the claim under the Unfair Dismissals Acts 1977 to 2007.

Preliminary Determination Regarding Issue No. 2:

As and from the 1^st of October 2015 all claims under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 can only be referred to the Workplace Relations Commission under Section 41 of the 2015 Act which states:

            “41. (1) An employee (in the Act referred to as the “complainant”) or, where the employee so consents, a specified person may present a compliant to the Director General that the employee’s employer has contravened a prevision specified in Part 1 of 2 of Schedule5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer.”

Accordingly, the Tribunal has no jurisdiction to hear the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)