EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD364/2015
APPEAL(S) OF:
John McGinley
against the recommendation of the Rights Commissioner in the case of:
Irish Wheelchair Association
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. A. Courell BL
Members: Mr. D. Morrison
Ms. A. Moore
heard this case in Letterkenny on 17 June 2016
Representation:
_______________
Appellant(s):
No attendance or representation at the Tribunal hearing
Respondent(s):
Mr. Anthony Kerr BL instructed by Ms. Anne Nagle, Doyle Solicitors, 31 South Bank, Crosses Green, Cork
The determination of the Tribunal was as follows:-
This case came to the Tribunal as an employee appeal against Rights Commissioner Recommendation r-147122-ud-14/SR under the Unfair Dismissals Acts, 1977 to 2007, by which the appellant was found not to have been unfairly dismissed on grounds of incapacity after years of illness absence with no established prospect of return by a known date.
The respondent is a national organisation with officers and legal representatives at locations throughout Ireland. The appeal to the Tribunal was scheduled for Friday 17 June 2016. The Tribunal had a hearing in respect of a completely different case set for the morning of Thursday 16 June 2016 cancelled prior to that day but the appellant arrived at the venue wishing to make a postponement application. He was then contacted by a Tribunal employee so that he could make his application on the afternoon of 16 June.
The appellant duly presented himself, completed a postponement application form and made his application on the afternoon of 16 June on grounds such as not being sure that he could have a representative available on 17 June and that a witness he wanted to call would be on holiday on 17 June. The appellant gave no indication of any medical reason for which he wished to have the 17 June hearing postponed.
The Tribunal refused the application saying that the notice was very short and that the case could start on 17 June opened by the respondent which bore the burden of proof and which would call evidence first whereupon the case could resume at a later date. The Tribunal said that it was expected to use hearing timeslots to start hearings rather than postponing matters at short notice.
On 17 June the respondent attended with witnesses and representatives from so far afield as to necessitate an overnight stay on 16 June but there was no attendance by the appellant or anyone acting on his behalf. The respondent made an uncontested application that the appeal be struck out (for want of prosecution). No-one opposed these applications. The Tribunal consented to issuing a written response to the events of that day.
Determination:
This case came to the Tribunal as an employee appeal against Rights Commissioner Recommendation r-147122-ud-14/SR under the Unfair Dismissals Acts, 1977 to 2007, by which the appellant was found not to have been unfairly dismissed on grounds of incapacity after years of illness absence with no established prospect of return by a known date. The Tribunal accedes to the uncontested application of the respondent that the appeal be struck out by reason of the appellant’s non-attendance. The appeal is struck out and the decision of the Rights Commissioner stands. The Tribunal is not making any further order in relation to witnesses’ expenses.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)