EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
TU39/2014
TU40/2014
TU41/2014
TU42/2014
TU43/2014
TU44/2014
TU45/2014
APPEALS OF:
Monika Morawska
Francesco Demurtas
Kieran Tyrrell
Emma Mulhern
Amanda McGarry
Sonya Gaffney-Curley
Joan Kelly
against the recommendation of the Rights Commissioner in the case of:
Dublin Airport Authority PLC (DAA), Dublin Airport, Co Dublin
ASC Airport Services Consolidated Limited, Dublin Airport, Co. Dublin
under
PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS REGULATIONS 2003
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr C. Corcoran B.L.
Members: Mr M. Noone
Mr S. O'Donnell
heard this appeal at Dublin on 23rd October 2015
Representation:
Appellants : Mr. Joseph Burke, McCartan & Burke, Solicitors, Iceland House, Arran Court, Smithfield, Dublin 7
Respondents: Seamus Given. Arthur Cox Solicitors, Earlsfort Centre, Earsfort Tce, Dublin 2
Preliminary issue:
This case came before the Tribunal by way of an appeal by the employer against the decision of the Rights Commissioner Ref: R-120562-TU-12/JW, R-120402-TU-12/JW, R-120447-TU-12/JW, R-120451-TU-12/JW, R-120539-TU-12/JW, R-120553-TU-12/JW and R-120445-TU-12/JW.
A preliminary issue arose as to whether the Tribunal had jurisdiction to hear this appeal insofar as the form T1B was received outside of the time limit of 6 weeks from the date of communication of the Rights Commissioners decision. The Rights Commissioners decision was dated 23rd June 2014 and it was common case that this decision was received by both parties on 24th June 2014. Therefore the time limit for lodging an appeal with the Tribunal expired at mid-night on 4th August 2014. The form T1B was stamped as received by the Tribunal on 7th August 2014, although the solicitor for the appellant stated that he personally hand delivered this form to the Tribunal offices on the evening of 6th August 2014.
The Solicitor for the appellant also gave sworn evidence that he had sent a document containing details of the appellants and the grounds for this appeal together with a covering note to the Tribunal on 23rd July 2014. Furthermore it was the Solicitor’s evidence that he received a phone call from an employee of the Tribunal on 25th July 2014 informing him that he was required to submit a form T1B in respect of these appeals.
Determination on Preliminary Issue:
The issues to be determined here, In the case of an appeal of a Rights Commissioner’s decision to the Employment Appeals Tribunal in relation to Transfer of Undertakings are as follows.
- Is the Notice of Appeal as submitted by the solicitor for the appellants in evidence within time, if accepted by the Tribunal, sufficient to ground a valid appeal to the Employment Appeals Tribunal, or - Must the Notice of Appeal be lodged in the usual form namely Form T1(B)?
- Is the time limit for appeal of Rights Commissioner’s decision to the Employment Appeal Tribunal of six weeks absolute or does the Tribunal have a discretion to extend it, or to extend it under certain circumstances and if it has, under what circumstances?
Having regard to the relevant sections of S.I. No. 131/2003-European Communities (Protection of Employees on Transfer of Undertaking) Regulations and the rules of statutory interpretation and in particular having regard to the “literal rule”, the “golden rule”, and the “mischief rule” the Tribunal finds as follows:
Point 1
It was agreed between the parties that the date of receipt of the Rights Commissioner’s Report was the 24th of June 2014. So time for the purpose of lodging appeal begins to run from that date. It was stated on oath by the solicitor for the claimant that he sent covering letter and relevant Notice of Appeal to the offices of the Employment of Appeals Tribunal on the 23rd of July 2014. This would be 29 days from date of receipt of the Rights Commissioner’s recommendation and accordingly within the time stipulated for lodgement of Notice of Appeal as outlined. However there was no record of having received those documents in the offices of the Employment Appeals Tribunal. If we accept the sworn evidence of the solicitor then the documents would have been received 29 days from receipt of the Rights Commissioner’s recommendation and within time for lodgement of Notice of Appeal.
However the appeal document which as was submitted was lodged, was not the standard appeal document i.e. Form T1(B) normally used for appeal, so the next point at issue is as follows: -Was the purported appeal document lodged and if it was, were the details recorded on this document sufficient to ground a valid appeal. The governing regulations in relation to the particulars to be contained in an appeal document are not very clear. The T1(B) document is not a statutory document and so at best can be described as an administrative documents for guidance and assistance when submitting an appeal. However the appeal document lodged does contain certain essential details e.g. names of the parties, the date of the Rights Commissioner’s recommendation and also denotes to the relevant parties an intention to appeal on the part of the claimants, before the time for appeal has expired.
The Tribunal accepts the sworn evidence of the solicitor for the claimants i.e. that the covering letter and a Notice of Appeal was sent to the offices of the Employment of Appeals Tribunal on the dates as stipulated by him. The solicitor concerned is a reputable solicitor whose evidence was tendered under oath to this Tribunal, and as such was the only evidence tendered under oath and subject to the rigours of cross-examination. The Tribunal accepts his bone fides. In relation to the next point as to whether the form of the appeal document used by the solicitor or the contents of that appeal document were sufficient to ground a valid appeal? The Tribunal accepts that the memo of phone call to his office by a “Paul” from the offices of the Employment Appeals Tribunal corroborates his evidence as tendered under oath. But in relation to the document concerned, to draw an adverse inference against the solicitor on the phrase “6 weeks” in that document would be to jump from the realms of evidence to the realms of speculation.
Despite the fact that section 11 of S.I. No. 131/2003-European Communities (Protection of Employees on Transfer of Undertakings) Regulations -is complex and unclear, especially with regard to the particulars that should be contained in a Notice of Appeal, we are of the view that the information provided is sufficient to ground a valid appeal as it denotes an intention to appeal before the time has expired. It contains the names of the relevant parties, and also the relevant Rights Commissioner’s Report being appealed and the name of the Rights Commissioner. The relevant part of Section 11 (2) states “An appeal under this section shall be initiated by the party concerned by a notice in writing to the Tribunal containing such particulars as may have been determined under paragraph (4) (e) and stating the intention of the party concerned to appeal against the decision”. Paragraph (4) (e) states “The following matters, or the procedures to be followed in relation to them shall be determined by the Tribunal namely, the particulars to be contained in a notice under paragraph 2”. While paragraph 2 is rather vague on what specific particulars should be disclosed in a notice of appeal nevertheless it does state that it should state that “the intention of the party concerned to appeal against the decision”. This is clearly and obviously stated on the appeal document lodged by the solicitor and before the 6 weeks period had elapsed.
Accordingly we find that the appeal document as submitted by the solicitor for the claimants is a valid appeal and was submitted within the stipulated time, and that Form T1(B) is not a statutory document but merely an administrative document for guidance, assistance and informational purposes only, even though there does not appear to be any existing record of these documents in the offices of the Employment Appeals Tribunal.
Point 2
Further or in the alternative in relation to the second question namely, does the Tribunal have the power to extend or under certain circumstances to extend the period of 6 weeks for lodgement of appeal, under section 11 of the said regulations and if they have, under what circumstances?
Under the said regulation it is clear that the Tribunal has a discretion or power to extend the time stipulated for appeal, but what is not clear is the extent of that discretion or power, or under what circumstances such discretion or power can be exercised.
The relevant part of Section 11(2) states as follows “--------- Such notice in writing shall be given within 6 weeks of the date on which it relates was communicated to the party or such greater period as the Tribunal may in accordance with paragraph 4(f), determine in the particular circumstances”. Paragraph 4(f) states “The following matters, or the procedures to be followed in relation to them shall be determined by the Tribunal namely –any matters consequential on, or incidental to, the foregoing matters.” This Tribunal is of the view that the recorded lodgement of the T1(B) Form containing the various particulars as required in that form, are matters “consequential on, or incidental to, the foregoing matters” namely the lodgement of a valid appeal. Accordingly the Tribunal has a discretion to extend the time to allow for the date of the recorded lodgement of the T1(B) Form, which is the 7/8/2014 and having regard to the circumstances hereby do so and in particular having regard to the solicitor’s sworn evidence that he personally hand delivered the relevant form T1(B) to the Tribunal offices on the evening of the 6/8/14 and which is accepted by the Tribunal, for reasons as stated above.
This Tribunal determines that it has jurisdiction to hear this appeal from the Rights Commissioner and accordingly and for the purpose of this appeal, the T1(B) as stamped lodged on the 7/8/14 and hand delivered to the office on the 6/8/14, together with other documentation having regard to the circumstances, was sufficient to lodge a valid appeal from the Rights Commissioner’s decision to the Employment Appeals Tribunal.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)