EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
TU9/2014 - TU15/2014
APPEAL(S) OF:
Sharon Tong
and
Orlaith Brennan
and
Vahida Gogic
and
Claire Duggan
and
Sarah Kent
and
Ciara Ward
and
Daiva Vaicekoniene
against the Recommendation of the Rights Commissioner in the case of:
Edinburgh Woollen Mill Limited
and
JN Realisations Limited
under
PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS REGULATIONS 2003
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O'Mahony BL
Members: Mr. D. Hegarty
Mr. J. FLavin
heard this appeal in Cork on 27 April 2015
Representation:
_______________
Appellant(s):
No legal or trade union representation
Respondent(s):
The first-named respondent was represented by Ms. Jennifer O'Sullivan, Ronan Daly Jermyn, Solicitors, 2 Park Place, Citygate Park, Mahon Point, Cork
There was no attendance at the hearing on behalf of the second-named respondent by Ms. Nathalie Staakman, Zolfo Cooper, The Zenith Building, 26 Spring Gardens, Manchester M2 1AB, England
The decision of the Tribunal was as follows:-
These cases came to the Tribunal by way of the employees’ appeal against the Rights Commissioner Decisions r-124538, 576, 585, 589, 600, 610, 614, and 624-tu-12 JOC under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003.
The first respondent’s representative argued that the appeals of any appellants not present should be struck out for want of prosecution because the Tribunal’s correspondence to all litigants made clear that postponements could only be granted on foot of an application made to a sitting division of the Tribunal.
ST (one of the appellants) countered that she had medical certificates for two of the appellants, that the same legal point was common to all appeals and that she herself would make the case for all the appellants.
Preliminary Issue
While the first respondent had two preliminary issues in this matter, it was first seeking a determination on the issue as to whether the claims in the first instance had been lodged within the prescribed time limit with the Rights Commissioner Service.
The employees who were appealing the Rights Commissioner decisions alleged that a breach of section 4 (1) of the Regulations had occurred in that their rights and conditions of employment had not been transferred to the purported new employer (the transferee).
Section 10 (6) of the Regulations prescribes the time limit for lodging a claim with the Rights Commissioner Service. It provides:
A rights commissioner shall not entertain a complaint under this Regulation unless it is presented to the commissioner within the period of 6 months beginning on the date of the alleged contravention to which the complaint relates, or where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within that period, such further period, not exceeding 6 months from the expiration of the first-mentioned period, as the rights commissioner considers reasonable.
It is clear from this subsection that the time limit is mandatory but it provides a discretion to extend the time by a further period, not exceeding 6 months, where exceptional circumstances prevented the presentation of the complaint within the initial 6 month period.
The date of the alleged contravention under the legislation is the date of the transfer which was 27 June 2011. The claims were lodged with the Rights Commissioner Service on 12 July 2012.
ST contended that since 15 July 2011 was the earliest date on which the employees/appellants had knowledge of the material facts on which to base and commence their claims to the Rights Commissioner Service, it would be unfair to backdate the date of contravention to the date of the transfer.
The Tribunal holds that the date of contravention is not to be confused with ‘the date of knowledge’, such as in personal injuries cases where the latter applies and where time begins to run from the date of knowledge. There is no such provision for a date of knowledge included in section 10 (6) of the Regulations. Time began to run from the date of the alleged transfer. Accepting the employee’s own evidence the employees were in a position to lodge their claims by 15 July 2011. In the circumstances the issue of extension of the time limit by reason of exceptional circumstances does not arise.
Accordingly, as the appeals were lodged with the Rights Commissioner Service outside the prescribed statutory time limit, the Tribunal finds that the employees’ appeals fail and it upholds the Rights Commissioner’s Decisions r-124538, 576, 585, 589, 600, 610, 614, and 624-tu-12 JOC under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)