EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Colm Ó Gógáin -appellant PW234/2013
against the recommendation of the Rights Commissioner in the case of:
Bord Na Mona Plc -respondent
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr D. Moore
Mr P. Woods
heard this appeal at Dublin on 21st May 2014
Appellant: Mr. Andrew Turner, Hamilton Turner Solicitors, 66 Dame St., Dublin 2
Respondent: Mr. Cian Beecher, Arthur Cox Solicitors, Earlsfort Terrace, Dublin 2
This matter comes before the Tribunal on foot of an appeal from an employee (the appellant) against the Recommendation of a Rights Commissioner (reference: r-128349-pw-12/JW) dated 22nd of March 2013 and received in the offices of the claimant and respondent’s representatives on or about the 26th March 2013.
In appealing a decision of the Rights Commissioner under the Payment of Wages Act 1991 there is an onerous obligation placed on the appealing party to complete two acts in a six-week timeframe.
Per Section 7(2) of the Act the appealing party:
(i) Shall issue a notice in writing to the Tribunal
(ii) Shall issue a copy of the notice in writing to the other party concerned i.e. the respondent to the appeal
The Tribunal must have regard to the need to strictly comply with Section 7 (2) and the burden of proof must therefore rest with the appealing party to positively demonstrate that the Tribunal and respondent have each been given the relevant notice within the six-week period.
The Tribunal has heard the appellant herein describe how he placed the requisite notice in the internal post system in the respondent’s premises. Its intended recipient was the Human Resources Manager who said in evidence that he never received the said notice and only became aware that the appeal was initiated after the six-week period and on being contacted by the Tribunal.
The appellant said he knew there was an obligation on him to notify the relevant party but could see no need to hand deliver, have witnesses or register the delivery of the notice to his employer. In short, he trusted to the system and the system let him down.
The Tribunal cannot be satisfied on the balance of probabilities that the “other party” described in the legislation, i.e. the respondent employer, was given the appropriate notice in the six-week period as required in the language of the Act.
Whilst the Tribunal might be satisfied the notice was sent the obligation was to “give” per the Act and the notice was never given. The Tribunal therefore does not have jurisdiction to proceed and must dismiss the appeal under the Payment of Wages Act, 1991 (reference: r-128349-pw-12/JW).
Sealed with the Seal of the
Employment Appeals Tribunal