EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD165/2013
APPEAL(S) OF:
Maurice Brennan
-appellant
against the recommendation of the Rights Commissioner in the case of:
Doyles Importers/Distributors
-respondent 1
&
MP Doyle
-respondent 2
under
UNFAIR DISMISSALS ACTS 1977 TO 2015
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. N. Russell
Members: Mr. J. Browne
Ms. S. Kelly
heard this appeal at Carlow on 13th December 2016
Representation:
Appellant: SIPTU, Liberty Hall, Dublin 1
Respondents: Peninsula Business Services (Ireland) Limited, Unit 3 Ground Floor, Block S, East Point Business Park, Dublin 3 was present on behalf of respondent 2
Background:
This appeal came before the Tribunal by way of an employee (the appellant) appealing against a Rights Commissioner Recommendation reference: r-124046-ud-12/JT.
The matter was previously listed before a Division of the Tribunal on the 24th April 2014. On that date the employee was provided with an opportunity to seek a Correcting Order from the Rights Commissioner in relation to the correct name of the employer. By the 13th December 2016 the Correcting Order had not been filed with the Tribunal.
A representative for respondent 2 outlined two preliminary issues to the Tribunal.
The first preliminary issue was that the appellant had ample opportunity to seek and file the Correcting Order in but had not done so. It was submitted that the enormity of the delay would now prejudice the employer as two individuals involved in the events had since retired. In addition the delay in time caused a difficulty in trying to recollect events that had taken place four years earlier.
The second preliminary point advanced was the fact that the sum of €1,000 awarded by the Rights Commissioner to the appellant had been discharged. The sum was paid to the appellant by cheque which was cashed by him on the 22nd January 2013.
Representation for the appellant informed the Tribunal that a Correcting Order was sought the day before the hearing on the 13th December 2016. The representative was unable to explain why it had not been sought on an earlier date. He submitted a different entity (other than respondent 1 or 2) was to be named on the Correcting Order and he understood that there were a number of subsidiaries. The appellant was provided work by one entity but was paid by another. It was the appellant’s case that the claim was lodged to the Rights Commissioner in the correct name but that a typographical error was made by the Rights Commissioner on the Recommendation itself.
In relation to the second preliminary point it was argued that the acceptance by the appellant of the sum of €1,000 should not prejudice the appellant in his appeal and could be taken into account in any sum awarded by the Tribunal. The appellant had accepted the money for financial reasons. He was willing to give an undertaking that he would return this sum. The appellant was seeking re-instatement to his position.
Determination:
Having considered the matter the Tribunal verbally informed the parties that the appeal of the Rights Commissioner Recommendation was dismissed for the following reasons:
- The sum of €1,000 was awarded by the Rights Commissioner on the 3rd January 2013.
- This sum was paid to the appellant that same month and the document attached to the cheque made it very clear the basis on which the sum was being sent to the appellant.
- The appellant proceeded to cash the cheque on the 22nd January 2013.
- The appellant signed the appeal paperwork on the 25th January 2013 and lodged the appeal on the 30th January 2013. However, the sum paid to the appellant was retained by him since 2013.
The Tribunal believes by his actions the appellant accepted both the award and the Rights Commissioner’s finding and therefore the Tribunal finds it has no jurisdiction to hear the appeal of the Recommendation (reference: r-124046-ud-12/JT).
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)