UD1721/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                                   CASE NO.

Stephen McDevitt

                                                                                                                            UD1721/2013

against the recommendation of the Rights Commissioner in the case of:

Hse West

under

UNFAIR DISMISSALS ACTS 1977 TO 2015

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Dr. A. Courell B.L.

Members:     Mr T. Gill

                     Ms. R. Kerrigan

heard this appeal at Letterkenny on 6th June 2017 and 7th June 2017

Representation:

_______________

Appellant:        In person

Respondent:     Kevin Little, C/o Patrick Rooney, Industrial Relations

                          Officer, Letterkenny General Hospital, Letterkenny, Co Donegal

This case came before the Tribunal as an appeal by an employee, the appellant, against the recommendation of the Rights Commissioner reference r-125055-ud-12/EOS under the Unfair Dismissals Acts 1977 to 2007.

This was a de-novo hearing and the Tribunal firstly had to decide if it had jurisdiction to hear the claim before it under the Unfair Dismissals Acts 1977 to 2007.

Background:

The appellant brought a case for Unfair Dismissal before another division of the Employment Appeals Tribunal. The case was heard in Letterkenny on: 9^th July 2007, 8^th and 9^th October 2007. The Tribunal, by way of a decision dated 1^st October 2008, found in favour of the appellant and found that his dismissal on 6^th March 2006 was unfair. The order was that he be re-engaged within two months from the date of the determination. The period of re-engagement was to be until the completion of his apprenticeship or a maximum period of 9 months.

That determination was appealed to the Circuit Court. The order was not advanced before this Tribunal but it was accepted that the matter had come before Judge McCabe at a sitting of the Circuit Court in Ballybofey on 20^th January 2011. It is common case that Judge McCabe varied the order of the Employment Appeals Tribunal and directed that the appellant had until 1^st June 2011 to recommence his apprenticeship. The Circuit Court affirmed the order of the Employment Appeals Tribunal in all other respects.

The appellant was re-engaged pursuant to the Circuit Court order on 6^th June 2011 to 6^th March 2012. The period of re-engagement was terminated on the expiration of the 9 month period. The appellant then brought a fresh claim under the Unfair Dismissals Act deeming his dismissal unfair.

Determination:

The Tribunal notes that it is accepted that the appellant was dismissed on 6^th March 2012 which was after the period of 9 months, in accordance with the original Employment Appeals decision as affirmed by the Circuit Court. The appellant raised the issue as to whether the respondent had substantively complied with the decision in relation to the quality of his apprenticeship.

However, this Tribunal does not have jurisdiction to consider the issue of compliance.

In the circumstances, the Tribunal is not satisfied that it has jurisdiction to hear the appellant’s claim. Accordingly, the Tribunal varies the order of the Rights Commissioner in so far as it finds that it does not have jurisdiction to hear the substantive case.  

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)