FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : IVAN WILDE LTD (REPRESENTED BY MR. BRIAN LEAHY B.L. INSTRUCTED BY CONWAYS SOLS) - AND - SABRY ELKADY (REPRESENTED BY MS. ROSEMARY MALLON B.L. INSTRUCTED BY MASON HAYES & CURRAN) DIVISION : Chairman: Mr Foley Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. Appeal Of Adjudication Officer Decision No(S). ADJ-00012854 CA-00017188-010.
BACKGROUND:
2. The Employee appealed the Adjudication Officer's Decision to the Labour Court in accordance with Section 7(1) of the Payment of Wages Act, 1991 on the 12 February 2019. The Court heard the appeal on the 3 May 2019.
DETERMINATION:
This matter comes before the Court as an appeal of a decision of an Adjudication Officer in a complaint by Sabry Elkady (the Claimant) in his complaint against Ivan Wilde (the Respondent). The appeal was made by Ivan Wilde Limited (the Appellant).
A preliminary matter was raised by the Claimant and the Court decided to first determine this matter as an issue on the basis that it had the potential to dispose of the matter in its entirety.
Preliminary matter
The Claimant submitted that the Appellant, Ivan Wilde Limited, had no locus standi to make an appeal of the Adjudication Officer’s decision and that this legal entity is a stranger to the matter before the Court.
The Respondent, who did not appear at the hearing of the Court but whose legal counsel did attend, accepted that the Respondent and the Appellant were separate legal persons. The Respondent’s legal counsel submitted that the fact of the Appellant being identified in the appeal as appealing the decision was an error. The Respondent acknowledged that the error persisted through the making of a submission to the Court. The Respondent’s legal counsel made application for an amendment to the appeal documentation as submitted.
The application of the Respondent was opposed by the Claimant who submitted that the statute did not make provision for amendment to appeal documentation by the Court.
Discussion and conclusions
It is common case that the Appellant in this matter was not the Respondent at first instance. The Respondent at first instance has not appealed the decision of the Adjudication Officer.
The Court notes that a separate complaint against the Appellant in the same terms as the within matter was made to the Workplace Relations Commission. That complaint resulted in a decision that the Appellant was not the correct Respondent in the matter. That decision has not been appealed by either party.
The Respondent has asked the Court to amend the documentation submitted to the Court by way of appeal so as to replace the named appellant with the Respondent. The Respondent has not offered the Court any authority for the proposition that a power to so amend the appeal documentation rests with the Court.
The Court concludes that it has no statutory power to amend the appeal documentation submitted to the Court on 12thFebruary 2019. Any amended document would therefore constitute a fresh appeal.
In all of the circumstances the Court finds that no valid appeal is in being. In light of that finding the Court is not required to consider the implications of the failure of the Appellant or Respondent to attend the hearing of the Court.
Determination
In the absence of a valid appeal the Court is unable to make a determination in the within matter which would purport to affirm, set aside or vary the decision of the Adjudication Officer.
Signed on behalf of the Labour Court
Kevin Foley
TH______________________
20 May 2019Chairman
NOTE
Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.