UD57/2012

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms M. Levey BL

Members:     Mr C. McHugh

                     Mr S. O’Donnell

heard this claim at Dublin on 1 October 2013

Representation:

Claimant:

Respondent:

The determination of the Tribunal was as follows:

Preliminary Issue

The claimant was dismissed on 27 May 2011 following a process in which the respondent relied upon an investigation carried out by a private investigator. The claimant’s workplace relations complaint form was received on 17 January 2012 outside the six month period after dismissal in which to lodge such claim under section 8 (2) (a) of theUnfair Dismissals Acts, 1977 to 2007. The claimant sought to establish that exceptional circumstances had prevented the giving of notice of the claim within the six month period in order to rely on section 8 (2) (b) of the Acts which extends the time up to twelve months from the date of dismissal.

On 1 June 2011 the claimant made a complaint to the Data Protection Commissioner about the circumstances of the private investigation which involved surveillance of the claimant when at his home. Around this time the claimant, who at the time was being represented by his trade union, sought to pursue an internal appeal by way of a letter to the respondent on 2 June 2011. It was common case that, regardless of the status of the appeal, the effective date of dismissal for the purposes of section 8 (2) of the Acts was 27 May 2011.

It was the respondent’s position that it was not on notice of any intention to seek relief under the Unfair Dismissals Acts until the WRC form was lodged on 17 January 2012. A date for the internal appeal had been offered to the claimant but this had not been availed of.

The claimant’s position was that he had not been aware of the six month time limit on lodging a claim under the Acts until he was contacted by a union official in January 2012 and that the internal appeal was deferred/suspended until the outcome of his complaint to the Data Protection Commissioner. In the event the Data Protection Commissioner found for the claimant in a finding dated 9 October 2012.

Determination:

The claimant’s assertion during the hearing that he was unaware of the six month time limit for lodging a claim under the Unfair Dismissals Acts is at odds with the position put by his representative that the claimant was waiting for the conclusion of the appeal process, which was in abeyance pending the outcome of the Data Protection complaint. The Data Protection complaint was not finalised until 9 October 2012 a date some six months beyond the maximum time permitted under any circumstances under section 8 (2) (b) if exceptional circumstances did exist. Nevertheless the Tribunal notes that the respondent was aware of the Data Protection complaint from 13 July 2011 when the Commissioner notified the respondent about the complaint. The respondent must have known that the complaint related to the dismissal of the claimant. It was open to the respondent to reply at any time to the letter seeking the appeal from the claimant’s union representative setting out their view that the appeal process was at an end. This would have removed all doubt from the claimant in that regard. For these reasons the Tribunal is satisfied that the claimant has shown exceptional circumstances prevented his lodging the claim within six months of the date of dismissal and, accordingly, allow the extension of time provided in section 8 (2) (b) of the Unfair Dismissals Acts so that the Tribunal has jurisdiction to hear the substantive claim under those Acts.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)