FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : BOBBY LUIZ T/A BOMBAY BAZAAR (REPRESENTED BY IAN FITZHARRIS B.L., INSTRUCTED BY EUGENE SMARTT, SOLICITORS) - AND - GORAN ZORIC (REPRESENTED BY JAMES P EVANS, SOLICITORS) DIVISION : Chairman: Mr Foley Employer Member: Mr Marie Worker Member: Ms Tanham |
1. An appeal of an Adjudication Officer's Decision no: r-158707-ud-15/DI.
BACKGROUND:
2. The Employer appealed the decision of the Adjudication Officer to the Labour Court in accordance with Section 8 A of the Unfair Dismissals Act, 1977 to 2015 on 3 February 2017. A Labour Court hearing relating to the time limit set out in the Workplace Relations Act, 2015 took place on 25 May 2017. On 7 June 2017 the Court issued Decision no UDD1727 on that matter. A hearing of the appeal of the Adjudication Officer's decision took place on 6 June 2018. The following is the Determination of the Court:
DETERMINATION:
Background
This matter comes before the Court by way of an appeal by Bobby Luiz trading as Bombay Bazaar (the Appellant) against a decision of an Adjudication Officer in the complaint of Goran Zoric (the Complainant) under the Unfair Dismissals Act, 1977 against his former employer, the Appellant.
The Adjudication Officer decided that the Complainant had been unfairly dismissed.
The hearing of the Court
The Court convened a hearing on 6thJune 2018. The Appellant was present and was legally represented. The Complainant was not present but his legal representative attended. The Complainant’s legal representative was not in a position to give an explanation to the Court for the absence of the Complainant. He asserted that he had made all reasonable efforts to notify his client of the date and time of the hearing but had not been in a position to speak directly to the Complainant in that regard.
The legal representative of the Complainant made an application for an adjournment of the hearing of the Court in light of the circumstances.
The Appellant outlined to the Court the difficulty it had experienced in securing availability of witnesses for the hearing of the Court and the prejudice it would suffer in the event of unavailability of its witnesses should the hearing be adjourned. The Appellant submitted that, in the circumstances, an adjournment should not be granted and the appeal should be allowed.
The Court was not provided with any cogent explanation for the failure of the Complainant to attend the hearing of the Court and, in those circumstances, did not grant an adjournment.
The Court however advised the parties that it would allow the Complainant a period of 24 hours to outline whether a very serious event such as a medical emergency on the day of the hearing had prevented him from attending the hearing of the Court. In the event that evidence of such an occurrence was put before the Court it would be considered. The Complainant did not provide evidence of any such event to the Court in that period.
The Court therefore decided that, particularly in light of the fact that the fact of dismissal is in dispute in the within matter, the within appeal must succeed in the absence of the Complainant from the hearing of the Court.
Determination
For the reasons outlined above the appeal succeeds and the decision of the Adjudication Officer is set aside.
The Court so determines.
Signed on behalf of the Labour Court
Kevin Foley
CR______________________
8 June, 2018.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.