EMPLOYMENT APPEALS TRIBUNAL
Mr John Hanrahan
against the recommendation of the Rights Commissioner in the case of:
PAYMENT OF WAGES ACT 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms D. Donovan B.L.
Members: Mr J. Hennessy
Mr F. Dorgan
heard this appeal at Thurles on 9th November 2016
Appellant: In person
Respondent: Cleary & Co Solicitors, Law Chambers, Market Street, Clonmel, Co Tipperary
This matter came before the Tribunal by way of an appeal by the Appellant/Employer against a recommendation of the Rights Commission R154896-pw-15/GC dated 10th August 2015 made under the Payment of Wages Act 1991.
A preliminary issue arose regarding compliance with section 7(2) of the Act of 1991.
Section 7(2) of the Act of 1991 provides as follows:-
“(2) An appeal under this section shall be initiated by a party by his giving, within 6 weeks of the date on which the decision to which it relates was communicated to him —
(a) a notice in writing to the Tribunal containing such particulars (if any) as may be specified in regulations under subsection (3) and stating the intention of the party concerned to appeal against the decision, and
(b) a copy of the notice to the other party concerned.
As section 7(2) is mandatory in terms, unless complied with the Tribunal lacks jurisdiction.
Compliance with Section 7(2)
The recommendation of the Rights Commissioner, as noted above, is dated 10th August 2015 and the letter from the Labour Relations Commission communicating the recommendation is also dated 10th August 2015. The LRC with this letter furnished a “detailed sheet outlining the mechanism and time limits for appeals”.
In the normal course of events a decision which is posted out on 10th August 2015 would be communicated on either the 11th or 12th August 2015 and in the absence of any evidence by the Appellant to the contrary the Tribunal so finds. Accordingly, the “within 6 weeks” limitation period per section 7(2) expired on 23rd September 2015. The Notice of Appeal was dated 1st October 2015 and was received by the Tribunal on 2nd October 2015.
It was the Appellant’s evidence that he was in hospital during the period when the decision would have arrived at his home. The Appellant on Sunday, 20th September 2015 emailed the Employment Appeals Tribunal requesting an appeal form. The EAT sent out the form T1B on 21st September and also sent an e.mail to the Appellant informing him of this fact and also that the form is available on the website www.workplacerelations.ie. Despite this the Appellant waited a further 9 to 10 days before submitting the Notice of Appeal to the Tribunal.
Accordingly, the Tribunal finds that section 7(2) was not complied with.
The Tribunal notes that whereas section 7(3)(g) of the Act of 1991 states that the Minister by Regulation may provide for “the extension by the Tribunal of the time for initiating such appeals” no such regulation was made.
Compliance with Section 7(2)(b)
It was the Appellant’s evidence that he did not furnish a copy of the notice of appeal to the Respondent/Employee as is required by section 7(2)(b) but that the EAT had furnished one. The wording of section 7(2)(b) is clear and unambiguous requiring that the party initiating the appeal shall give, within six weeks from the date of communication of the decision, a copy of the notice of appeal to the other party. The Tribunal finds that the Appellant did not give the Respondent a copy of the notice of appeal within the said six weeks or at all.
Accordingly, the Tribunal finds that section 7(2)(b) was not complied with by the Appellant.
In the circumstances, the Tribunal finds it has no jurisdiction and the decision of the Rights Commissioner dated 8th August 2015 stands.
Sealed with the Seal of the
Employment Appeals Tribunal