EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Linda Jones - claimant UD1134/2013
WT193/2013
Against
St John of God Community Services Limited
T/A St John of God North East Services
- respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr C. Corcoran B.L.
Members: Mr C. Lucey
Mr P. Trehy
heard this claim at Dublin on 4 November 2014
Representation:
Claimant(s) : Ms Tracy Ennis Faherty B.L. instructed by Ms Denise Fitzgerald,
Gleeson McGrath Baldwin, Solicitors, 29 Anglesea Street, Dublin 2
Respondent(s) : Mr Paul Rochford,
IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
Preliminary Issues
At the commencement of the hearing the claimant’s representative withdrew the claim under the Organisation of Working Time Act, 1997.
Two preliminary issues were raised in this case by the respondent. The first was that the claim was lodged outside of the statutory time limit of six months from the date of the dismissal and secondly the issue of whether or not exceptional circumstances existed to extend the time period to 12 months. The respondent submitted that the claimant resigned her position through her solicitor by letter dated the 28 November 2012. The respondent witness HR officer at the time gave evidence of issuing the claimant’s P45 on the 13 March 2013. The respondent organisation continued to correspond with the claimant after the letter of resignation in order to keep the matter open to her and to give her time to reconsider her resignation and to re-engage. By March 2013 the claimant had not engaged and her solicitor had made numerous requests to issue the P45. The HR officer instructed pay roll to issue her P45 in March 2013. The respondent organisation submitted that exceptional circumstances did not exist in the case as during the six month period after the resignation letter she was capable of instructing her solicitor. In support of the submission letters from the claimant’s solicitor were opened to the Tribunal.
The claimant’s representative accepted that the letter of the 28 November 2012 did refer to a resignation however the respondent continued to engage and correspond with the claimant. In the correspondence the claimant showed a wish to return to work in a different area to the challenging behaviour unit run by the respondent. The claimant’s barrister submitted that the date of dismissal was therefore the date the P45 issued to the claimant. In the period after the dismissal the claimant was in poor health and the report of the occupational health expert supported her state of mind at the time. The claimant’s solicitor at the time would call to her home as she was unable to attend at the offices of her legal adviser further demonstrating her ill health.
Determination of the Preliminary Issues
The Tribunal carefully considered the evidence and the submissions made by both parties at the hearing. The responded contended that the date of dismissal was the 28 November 2012 and the claimant contended that the date of dismissal was the 13 March 2013.
Section 8 (2) of the Unfair Dismissals Act 1977 requires a claim for redress under the Act to be initiated by giving a notice in writing to a Rights Commissioner or the Tribunal, as the case may be, within six months of the date of the relevant dismissal. Thus, to determine whether the claim is initiated within the statutory time limit the Tribunal must determine the date of dismissal. The claimant resigned her position by letter dated the 28 November 2012 and the tribunal therefore determine that this date is the date of dismissal.
The Tribunal notes that the claim for redress was submitted to the Tribunal on the 21 August 2013 approximately nine months after her employment terminated. The onus is on the claimant to satisfy the Tribunal that exceptional circumstances prevented her lodging the claim within the first six months from the date of dismissal. The Tribunal is not satisfied that exceptional circumstances prevented the claimant lodging her claim within the period of six 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.
The Tribunal has no jurisdiction to hear the claim under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)