EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
John Maber PW814/2012
against the recommendation of the Rights Commissioner in the case of:
Sepam Specialists Limited
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. N. Russell
Members: Mr. J. Hennessy
Mr. J. Flavin
heard this appeal at Thurles on 27th June 2014
Appellant: In person
Respondent: Mr Cathal Minihane, Clohessy Minihane Solicitors,
24 Barrington Street, Limerick
The Respondent has raised the following Preliminary issues to be ruled upon by the Tribunal:
1. That the Respondent Sepam Specialist Limited is not the Claimant’s Employer and that the correct employer is Sepam Support Services Limited.
The Tribunal has considered the submission at length. Three documents were placed before the Tribunal in the context of this particular issue. Two separate Contracts of Employment were placed before the Tribunal, both with Sepam Support Services Limited. The Claimant disputed his signature on one of the purported Contract documents and the other was not signed by the Claimant. Further, the Tribunal was presented with a copy of a cheque for €4,000 paid to the Claimant by the Respondent for arrears of wages.
The Payment of Wages Act 1991 having defined “wages” as a payment to an employee from his or her employer, the Tribunal is of the opinion that the Respondent, if not the Claimant’s de facto Employer, had assumed the role of an Employer in this instance and is the correct Respondent in the within Proceedings.
2. That the Laws governing the Claimant’s Contract of Employment are the Laws of the Channel Islands and not the Laws of the Republic of Ireland. The Claimant was recruited in the Republic of Ireland. The Tribunal is not satisfied that either of the documents presented are Contracts of Employment.
The Respondent Company paid wage arrears to the Claimant in Clonmel on the 20th September 2011. The Respondent is an Irish Company and the Employee is domiciled in Ireland. The Tribunal is of the opinion that the Contract between the Parties is more closely connected with the Republic of Ireland and that the applicable Law is accordingly Irish Law.
3. That the Claimant’s Appeal under the Payment of Wages Act 1991 is not properly before the Tribunal as a result of his omission in not serving a copy of his Notice of Appeal on the Respondent pursuant to the provisions of Section 7(2)(b) of the Act. The Tribunal agrees that this admitted omission on the part of the Claimant precludes the Tribunal from hearing the Appeal under the Payment of Wages Act 1991.
4. That there was no claim for holiday pay before the Rights Commissioners under the Organisation of Working Time Act 1997. The Tribunal disagrees. The content of the Workplace Relations Form submitted to the Rights Commissioners are abundantly clear in claiming holiday pay and quantifying the amount of the holiday pay claim.
5. That any claim for holiday pay to the Rights Commissioners was out of time.
The Claim was not submitted to the Rights Commissioners within the 6 month period provided for under Section 27(4) Organisation of Working Time Act 1997.
However, the Tribunal is satisfied that the Claimant had been pursuing the Respondent for payment, had rung and called to its Offices in Clonmel on a number of occasions and was of the belief that the issue would be addressed. The very fact that the Claimant was ultimately given a cheque for €4,000 in respect of Wages arrears indicates that the Claimant was liaising with the Respondent with a reasonable expectation that his entitlements were being dealt with by the Respondent notwithstanding its delay in processing matters.
In all of the circumstances, the Tribunal is satisfied that the failure to present the compliant within the 6 month period was due to reasonable cause and therefore extends the period for submission of the initial complaint to 12 months.
6. That the Claimant was not an “employee” but an independent Contractor. The Tribunal is of the opinion that the documentation put before the Tribunal by the Parties to include the Letter to the Claimant of the 28/2/2011 which refers to a “temporary lay-off” and the Claimant’s “Contract of Employment” constitute evidence that the Claimant was an employee.
In the circumstances the Claimant is entitled to avail of the protections provided in the Organisation of Working Time Act 1997 and to pursue his Claim for €4,187.51 holiday pay. The Claimant has yet to establish his entitlement to arrears of holiday pay at a hearing of the substantive issue.
Sealed with the Seal of the
Employment Appeals Tribunal