EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Ali Raza Khan – appellant UD1722/2013
Deeal Retail Limited – respondent
against the recommendation of the Rights Commissioner in the case of:
Ali Raza Khan
Deeal Retail Limited
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr D. Mac Carthy SC
Members: Mr M. Noone
Mr T. Brady
heard this appeal at Dublin on 24th February 2015 and 24th April 2015
Appellant(s): Mr Eamonn Dornan BL instructed by:
Mr Brian Trayers
Trayers & Co, Solicitors, 29-30 Ushers Quay, Dublin 8
Respondent(s) : Mr Aidan Phelan
Peninsula Business Services (Ireland) Ltd
Block S, Eastpoint Business Park, Dublin 3
This case came before the Tribunal by way of an employee appealing the recommendation of a Rights Commissioner ref: r-132847-ud-13/DI. The Rights Commissioner found that the claim was statute barred.
The determination of the Tribunal was as follows:-
The Workplace Relations complaint form was submitted to the Rights Commissioner Service by fax on 20th March 2013 and by post on 21st March 2013. The appellant stated on his form that he received one week’s notice of termination on 13th September 2012 and that his employment ended on 20th September 2012. The Rights Commissioner found that he did not have jurisdiction to hear the claim as the form was submitted one day outside the statutory time limit.
The respondent contended that the employment had ended on 13th September 2012. The dismissal was by reason of gross misconduct following an allegation of sexual assault by a junior colleague and as such no notice period applied. The appellant contended that he had suffered from an epileptic episode and that the incident had occurred afterwards and that he had no memory of the incident, though he did not dispute that it had occurred.
The appellant argued that he appealed the dismissal but that this appeal ultimately did not take place. The last correspondence from the respondent was 30th October 2012. The claimant argued that this process stayed the date of dismissal and that he was unaware of the exact date of dismissal. The Tribunal did not accept these arguments as the appellant had legal advice at the time of the dismissal and the letter of dismissal stated 13th September 2012 as the date of dismissal. The appeal did not take place as the appellant did not attend.
The appellant contended that he was seeking medical treatment in his home country of Pakistan for a number of months and only arrived back to Ireland shortly before the 6 month deadline to lodge a claim. The appellant also contended that if the Tribunal found that the dismissal was not for misconduct a notice would apply which would bring the appellant with the statutory time limit. The Tribunal considered that medical evidence must be supplied in order to forward either or both of these arguments. The case was adjourned to 24th April 2015 to allow the appellant time to produce medical evidence.
The matter was put in for mention on two separate occasions (24th March 2015 & 7th April 2015) to ascertain if the appellant would be producing medical evidence on the adjourned hearing date. On both occasions the appellant’s representative agreed that no medical evidence had been obtained and that calls to doctor whom the appellant had consulted had not been returned. On the adjourned date no medical evidence was produced.
The Tribunal gave the appellant every opportunity to produce medical evidence to show that he was receiving treatment and that therefore exceptional circumstances existed to allow an extension of the statutory 6 month time limit. This was not forthcoming. In the circumstances the Tribunal upholds the recommendation of the Rights Commissioner that the original complaint was statute barred.
Sealed with the Seal of the
Employment Appeals Tribunal