EMPLOYMENT APPEALS TRIBUNAL
APPEALS OF:
| CASE NO. |
- first named employee
| TU39/2012 |
- second named employee
| TU40/2012 |
- third named employee
| TU41/2012 |
and
|
|
- employer
| TU51/2012 TU52/2012 TU53/2012 |
against the decisions of a Rights Commissioner R-095074-TU-10/MMG, R-095075-TU-10/MMG and R-095202-TU-10/MMG in the case of both parties:
|
|
under |
|
EUROPEAN COMMUNITIES (PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS) REGULATIONS, 2003
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr T. Ryan
Members: Mr J. Reid
Ms N. Greene
heard these appeals at Dublin on 7 November 2013
Representation:
The Employees:
Mr Shay Clinton, IMPACT, Nerneys Court, Dublin 1
For the first and second named employees
Ms Jane Boushell, SIPTU, Liberty Hall, Dublin 1
For the third named employee
The Employer:
Ms Niamh McGowan BL instructed by Ms Carol Fawsitt,
Hayes Solicitors, Lavery House, Earlsfort Terrace, Dublin 2
This case came before the Tribunal by way of appeals by both the employees and the employer against three decisions of a Rights Commissioner Ref: R-095074-TU-10/MMG,
R-095075-TU-10/MMG and R-095202-TU-10/MMG arising from complaints from each of the three employees alleging breaches of Regulation 4 paragraph 2.
The determination of the Tribunal was as follows: -
The Rights Commissioner conducted a hearing into the complaints of the three employees on 24 January 2011 and the Determination of the matters was signed on 12 June 2012. The Determination was in the following terms:-
“Both parties presented comprehensive verbal and written submissions to the hearing.
It is noted that both parties presented in depth analysis of their positions. This includes some significant legal comments as well.
However I am aware of the change in employment in general and the overarching agreements agreed between interested parties, government and unions and current prevailing circumstances.
It is against this background that I make comment that there appears to be a lack of normal industrial relations discussions on the points of the claimants’ complaints.
I also note the recent general agreement in relation to holidays across the civil service.
Therefore I recommend that the parties should enter into meaningful discussions to seek an appropriate and amenable resolution to these matters.”
Regulation 10 deals with complaints and paragraph 4 provides
“Where a complaint is presented to a Rights Commissioner under paragraph (1), the Rights Commissioner shall –
a) Give the parties an opportunity to be heard and to present any evidence relevant to the complaint
b) Give a decision in writing in relation to the complaint; and
c) Communicate the decision to the parties”
Paragraph 5 provides
“A decision of a Rights Commissioner under paragraph (4) shall do one or more of the following:
a) Declare that the complaint is or, as the case may be, is not well founded;
b) Require the employer to comply with these Regulations and, for that purpose, to take a specified course of action; or
c) Require the employer to pay to the employee compensation of such amount (if any) as in the opinion of the Rights Commissioner, is just and equitable in the circumstances, but…………..(Sets out the limits on compensation)”
Regulation 11 deals with appeals and enforcement
Paragraph 1 provides
“A party concerned may appeal to the Tribunal from a decision of a Rights Commissioner under Regulation 10, and if the party does so, the Tribunal shall-
a) Give the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal
b) Give a determination in writing in relation to the appeal affirming, varying or setting aside the decision, and
c) Communicate the determination to the parties”
Determination
Having carefully considered the findings of the Right Commissioner and the afore quoted regulations the Tribunal is satisfied that the Rights Commissioner’s findings in these matters did not amount to a decision as defined in these regulations. Accordingly, there are no decisions to appeal. That being the case the Tribunal finds that there is no jurisdiction to hear the appeals under theEuropean Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)