EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
EMPLOYEE-claimant UD1242/2012
against
EMPLOYER - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr T. O'Grady
Mr F. Keoghan
heard this claim at Dublin on 5th November 2013
Representation:
_______________
Claimant(s) : Mr. Will Kelly BL instructed by O’Hanrahan & Co, Solicitors, 71
Ballybough Road, Fairview, Dublin 3.
Respondent(s) : Ms. Paula O'Hanlon, I B E C, Confederation House, 84/86 Lr.
Baggot Street, Dublin 2
Preliminary Point
At the commencement of the hearing a preliminary issue was raised by the respondent’s representative concerning the jurisdiction of the Tribunal to hear this case. The respondent’s representative submitted that the Tribunal did not have jurisdiction to hear the case as it was submitted that the claimant had lodged his claim form prior to the date of his dismissal. The Tribunal heard submissions from both representatives concerning this issue.
Determination on Preliminary point
The Tribunal has carefully considered the submissions made and considered the time line of events and correspondence inter parties which included an appeals process entered into after the claimant had been notified of his dismissal for gross misconduct.
The Tribunal has taken on board the argument that this could be a case where the claimant might have been constructively dismissed but the Tribunal cannot agree with this interpretation of the facts. The relevance of the date of 9August 2012 is brought about by a clear letter of dismissal following an investigation/disciplinary process. The Tribunal finds quite simply that this is not a case of constructive dismissal in these circumstances.
The Tribunal has every sympathy for the claimant herein but must have an eye to the strict interpretation of the relevant wording first and foremost.
There can be no doubt that the claimant was aware of the fact that his dismissal for gross misconduct would include an element of notice as the letter of 9 August 2012 specifically states that the employer viewed the actions of the employee to amount to “gross misconduct warranting dismissal with notice”. It is accepted that statutory notice for the claimant was 4 weeks, bringing the date of termination of employment up to 6 September 2012.
It is worth noting that even if the claimant was only entitled to one weeks’ notice the claimant would have presented his complaint to the Tribunal before time as the Tribunal secretariat received the appropriate form on 13 August 2012, a mere 4 days after the dismissal had been notified to the claimant.
The Tribunal has noted that the employer herein terminated the employment for gross misconduct but unusually indicated that it would allow for a notice period.
The appeals process entered into does not negate the fact of the form already sent into the Tribunal secretariat. It was always open to the claimant to submit a fresh form after the internal processes had been exhausted. Unfortunately the claimant did not do this and is therefore relying on a complaint form submitted 4 days after the notice of termination and 3½ weeks before the employment was due to terminate.
The Tribunal is bound to interpret the “date of dismissal” as per the statute which quite clearly indicates that it is the date on which notice expires. In these circumstances the claimant’s notice expired on 6 September 2012 and it can only be on that date that the 6 months required for service starts to run.
The Tribunal regrets this outcome but is bound by the statute before it. Accordingly the Tribunal declines jurisdiction to hear the case.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)