EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Mary Bannon – claimant UD1781/2012
against
St John of God Community Services Limited T/A St John of God North East Services – respondent 1
&
St John of God Community Services Limited T/A St John of Gods – respondent 2
&
St John of God North East Services – respondent 3
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr T. Ryan
Members: Mr D. Peakin
Mr F. Keoghan
heard this claim at Dublin on 27th March 2014
Representation:
_______________
Claimant(s) : Ms Aoife McGuinness
McDonough & Breen, Solicitors,
Distillery House, Distillery Lane, Dundalk, County Louth
Respondent(s): Mr Liam Bell BL, instructed by:
Ms Aisling Cormican
Mason Hayes & Curran, Solicitors
South Bank House, Barrow Street, Dublin 4
The determination of the Tribunal was as follows:-
Preliminary Issues:
There were two preliminary issues raised in regard to this claim. The first was that the claim was lodged outside the time limit and the second that the incorrect respondent was named.
In regard to the first issue the claim form (T1A) was lodged with the Tribunal on 30th November 2012. The date of termination of employment on the form was 21st December 2011. Claims under the Unfair Dismissals Acts must be lodged within 6 months of the date of dismissal. In exceptional circumstances this time limit can be extended by a further 6 months. The second issue was in regard to the named respondent. The claimant worked as a bus escort for a school, but was paid by a third party; the named respondent. The respondent contends that it only provides a payroll service for the school and is not the employer and rather the Board of Management of the School is the correct employer. The Tribunal heard evidence in regard to both of these preliminary issues.
Summary of Claimant’s Case:
The claimant gave evidence. She was employed as a bus escort for a special needs school. She turned 65 on 27th September 2011. In December 2011 she was approached by the School Principal, whom she considered her employer. He told her that her employment would be terminated but that he hoped for her to be reinstated the following September when she was 66 and that she could then work until she was 70. She received no correspondence from the named respondent. The claimant finished working on 21st December 2011. She denied ever receiving a form P45. The P45 submitted to the Tribunal by the respondent cited 1st January 2012 as the date of termination.
She expected to be reinstated when she turned 66 in September 2012, but she received no correspondence from the School. She had no contact with the School, other than for retirement parties, after her employment ended. She contacted a solicitor in November 2012 to act on her behalf.
Summary of Respondent’s Case:
The School Principal gave evidence. The norm in the School was to retire at 65. He was notified by payroll that the claimant had turned 65. He was not aware of her age prior to this. The claimant was employed by the Board of Management of the School and it was up to him to inform her that she had to retire. He called her to his office and explained the situation. The claimant was polite and obliging as ever. There was no letter to follow up this meeting. He informed payroll of the termination.
A few days later the claimant sought an informal meeting with him. She was interested in continuing to work at the school. She had heard that others who had retired at 65 had taken a year out and were then rehired at 66, provided a certain number of hours were not exceeded, and could work until they were 70. The Principal told her he was not aware of this. The Principal disputed giving the claimant any reassurance that she could return at 66. He told her that even if her scenario were true no work could be guaranteed. It was impossible to predict how many bus escorts were required for the following year.
The HR Officer of the respondent company gave evidence. The respondent provides a payroll function for this and other schools. Time sheets are submitted by the schools and the payroll is produced from these. It provides payslips, P60s and P45s. The witness did not personally issue the P45 to the claimant. The last payment to the claimant was on 29th January 2012 due to it being a monthly payroll.
Determination of the Preliminary Issue:
The Tribunal is required as a preliminary matter to determine whether to extend time for the initiation of this claim.
Section 8(2) of the Unfair Dismissals Act, 1977 as amended by Section 7 of the Unfair Dismissals (Amendment) Act, 1993, provides that:
“A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under section 17 of this Act made for the purposes of subsection (8) of this section) to a rights commissioner or the Tribunal, as the case may be—
(a) within the period of 6 months beginning on the date of the relevant dismissal, or
(b) if the rights commissioner or the Tribunal, as the case may be, is satisfied that exceptional circumstances prevented the giving of the notice within the period aforesaid, then, within such period not exceeding 12 months from the date aforesaid as the rights commissioner or the Tribunal, as the case may be, considers reasonable,
and a copy of the notice shall be given by the rights commissioner or the Tribunal, as the case may be, to the employer concerned as soon as may be after the receipt of the notice by the rights commissioner or the Tribunal.”
It is common case that the claimant’s employment ended on the 21st December 2011. The respondent gave evidence that a P45 was issued to the claimant (which the claimant denies receiving) which cited the 1st January 2012 as the date of termination. The claimant gave evidence that the Principal had intimated to her that he ‘hoped’ to have her re-instated the following September. The Principal disputed giving the claimant any such reassurance and that it was impossible to predict how many bus escorts were required for the following year.
The claimant lodged Form T1A with the Tribunal on the 30th November 2012 which was approximately eleven months after her employment was terminated. The onus lies firmly on the claimant to satisfy the Tribunal that exceptional circumstances had prevented her lodging a claim within six months of the date of dismissal.
Section 8(2) of the Unfair Dismissals Act, 1977 as amended by Section 7 of the Unfair Dismissals (Amendment) Act, 1993, specifically provides for an extension of time where an exceptional matter prevented the lodging of a claim.
The Tribunal holds that the use of the phrase “exceptional circumstances” implies some norm from which the circumstances in question are an exception.
The term “exceptional circumstances” was considered by the Employment Appeals Tribunal in the case of Christopher Byrne -v- PJ Quigley Ltd UD762/1994. In that determination “exceptional” was defined as “something out of the ordinary” and further that the circumstances must be “…unusual, probably quite unusual, but not necessarily highly unusual”. The Tribunal follows Byrne in that the circumstances need not be highly unusual before the extension of time is allowed.
The majority of the EAT in Byrne were of the view that exceptional circumstances must have occurred and must prevent the lodging of the claim and must occur within the first six months after the date of dismissal. This Tribunal holds that in order for the exceptional circumstances to prevent the lodging of a claim then they must occur within the six months after termination of employment, following the majority in Byrne.
The Tribunal holds that the phrase “exceptional circumstances” mean circumstances justifying the making of an exception to the six-month time limit.
The Tribunal holds that the burden of proof lies upon the claimant to show that exceptional circumstances prevented the claimant from giving notice in writing both because the wording of the statute implies it and because that which prevented the giving of notice lies peculiarly within the knowledge of the claimant.
The Tribunal is also cognisant of the fact that there may be confusion in relation to the identity of the employer in cases involving schools with different entities involved such as the Department of Education and the Board of Management. The claimant gave evidence that she always regarded the Principal as her employer and even though this is erroneous she did not lodge a claim against him within the six months time limit.
The Tribunal is not satisfied that exceptional circumstances prevented the giving of notice within the period of 6 months beginning on the date of dismissal, and refuses to extend the period for the giving of notice to 12 months from the date aforesaid.
Because the Tribunal has decided against the claimant on the first preliminary point it is not required to consider the second one.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)