EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Howth Findlater House Limited (appellant) PW144/2013
against the recommendation of the Rights Commissioner in the case of:
Ridah Ahmed - (respondent)
PAYMENT OF WAGES ACT, 1991
ORGANISATION OF WORKING TIME ACT, 1997
TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994 AND 2001
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms O. Madden B.L.
Members: Mr C. McHugh
Ms M. Maher
heard this appeal at Dublin on 16th April 2014
Appellant(s) : Hennessey & Perrozzi Solicitors, Burgundy House, Foster
Way, Swords, Co. Dublin
Mr Ray Olohan, Howth Findlater House Limited, Unit 7g,
Swords Business Park, Swords, Co Dublin
Mr Jerry Harrington, Howth Findlater House Limited, Unit
7g, Swords Business Park, Swords, Co Dublin
Respondent(s) : Trayers & Company, Solicitors, 29/30 Ushers Quay, Dublin 8
The decision of the Tribunal was as follows:
This case came before the Tribunal by way of an employer appeal of a Rights Commissioner recommendation under the Payment of Wages Act, 1991 (ref:r-096750-pw-10/GC), Organisation of Working Time Act, 1997(r-096751-wt-10/GC), Terms of Employment (Information) Act, 1994 and 2001 (r-096749-te-10/GC).
For clarification purposes the appellant will be referred to as employer and the respondent as employee.
The Tribunal heard evidence from both parties.
The employee worked as a kitchen porter from 14th March, 2010 until 19th June, 2010.
In relation to the Terms of Employment, the employer told the Tribunal that the employee was given two copies of his contract, one for his own records and one was signed by the employee on 22nd March, 2010 and handed back to the employer. The employee stated that he signed a contract but was not given a copy of the document.
The employee told the Tribunal that while working for his employer, he was required to work excessive hours and did not receive the required rest periods between shifts. He also indicated that he did not receive his statutory break periods. The employer denied that this was the case and indicated full compliance with the legislation as regards breaks and rest periods. Rosters were shown to the Tribunal showing start and finish times in relation to the employee.
As regards the Payment of Wages appeal, the employer confirmed that they did not furnish a notice in writing to the respondent within 6 weeks of the date of the decision by the Rights Commissioner being communicated to them as required by section 7(2)(b) of the Payment of Wages, Act, 1991.
Section 7(2)(b) of the Payment of Wages Act, 1991, [No.25/1991] provides as follows:
.—(1) A party concerned may appeal to the Tribunal from a decision of a rights commissioner under section 6 and, if he does so, the Tribunal shall give the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal, shall make a determination in writing in relation to the appeal affirming, varying or setting aside the decision and shall communicate the determination to the parties.
(2) An appeal under this section shall be initiated by a party by his giving, within 6 weeks of the date on which the decision to which it relates was communicated to him—
(a) a notice in writing to the Tribunal containing such particulars (if any) as may be specified in regulations under subsection (3) and stating the intention of the party concerned to appeal against the decision, and
(b) a copy of the notice to the other party concerned.
The Tribunal finds that the appellant did not furnish a notice in writing to the respondent within 6 weeks of the date of the decision by the Rights Commissioner being communicated to them as required by section 7(2)(b) of the Payment of Wages, Act, 1991. Compliance with section 7(2)(b) of the Payment of Wages, Act, 1991 is a mandatory statutory requirement for the making of a valid appeal to the Tribunal and as a result of this non-compliance with the sub-section, the Tribunal finds that it has no jurisdiction to deal with the appeal from the recommendation of the Rights Commissioner.
Accordingly, the appeal under the Payment of Wages Act, 1991 fails.
In relation to the claim regarding rest breaks, the Tribunal has no jurisdiction under the Organisation of working time Act to adjudicate on matters regarding same.
The Tribunal overturns the Rights Commissioners decision under the Terms of Employment (Information) Act, 1994 and 2001, and accepts the employer’s evidence that the employee was given a copy of his contract of employment.
Sealed with the Seal of the
Employment Appeals Tribunal