EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
UD1574/2012
Ann Marie Keenan - Claimant
against
The Governor and the Company of the Bank of Ireland - Respondent
Under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. M. Gilvarry
Members: Mr. D. Morrison
Ms. R. Kerrigan
heard this claim at Letterkenny on 19th May 2014
Representation:
Claimant: Ms. Charlotte Simpson BL instructed by:
V. P.McMullin, Solicitors, Port Road, Letterkenny, Co. Donegal
Respondent: Ms. Rosemary Mallon BL instructed by:
Teresa Kelly, Solicitor, Bank of Ireland, Group Legal Services,
40, Mespil Road, Ballsbridge, Dublin 4
The determination of the Tribunal was as follows:-
Background:
The claimant commenced employment with the respondent in January 2001 and her employment ended on the 21st October 2011. She lodged a Workplace Relations Complaint Form on the 19 October 2012, some 11 months and 29 days later.
Counsel for the respondent submitted that the claimant’s application was lodged outside the time limit under the Act. Counsel further submitted that the Tribunal could not extend time without evidence from the claimant’s Doctor as to this issue being submitted.
Counsel for the claimant responded that there were exceptional circumstances preventing the claimant from submitting her application to the Employment Appeals Tribunal within the six-month time limit and in these circumstances the Tribunal should exercise its discretion to extend the time limit to lodge an application for a further six months. She submitted that the claimant’s and her husband’s evidence and the Doctor’s certificates would convince the Tribunal. The Tribunal decided to hear this application as a preliminary issue.
Preliminary Issue:
The claimant and her husband gave evidence in respect of the exceptional circumstances preventing her from lodging her application within the six-month time limit required under the Act.
The claimant commenced employment with the respondent in 2001. In 2006 she gave birth to her first child and was absent on certified medical leave for depression. She explained to the Tribunal that she had suffered post natal depression. In 2010 her second child was born and again she was diagnosed with post natal depression. She attended her doctor and was certified unfit for work and prescribed citalopram which is an antidepressant.
A letter from the respondents dated the 21st October 2011 informed the claimant that due to the absence of the submission of further medical evidence and her failure to return to work they were treating her as having resigned and that her employment had terminated.
She told the Tribunal that when she received this letter she was shocked. She continued under medical supervision and prescribed medication due to her depression which, she stated, was so severe as to prevent her from lodging her application before the six-month time limit elapsed. She was not even able to attend to everyday tasks, including caring for her children alone or carrying out household tasks. The claimant’s husband gave evidence to that effect also. Medical certificates were produced to the Tribunal up to July 2012 stating the claimant was unfit for work due to depression. These certificates were furnished to the Department of Social Welfare in respect of invalidity benefit.
She explained that due to her depression she had “good” days and “bad” days. In August 2012 she began to feel slightly better and in September 2012 she attended the Citizens information Centre in Donegal Town to obtain some employment law advice. She had obtained some information regarding employment law on the internet.
In mid October 2012 she felt strong enough to lodge her application to claim unfair dismissal to the Employment Appeals Tribunal.
On cross-examination she stated that she had not lodged her application within the six-month time limit due to her depression but had known when she eventually lodged the claim that there was a twelve month time limit.
Preliminary Determination:
The Tribunal have carefully considered the evidence and submissions adduced regarding the preliminary matter.
It was common case that the claimants claim was lodged more than six months but less than 12 months from the date of dismissal.
Counsel for the respondent cross examined the claimant in relation to the date when she first felt well enough to lodge the claim, and made much of the delay past the initial 6 month period, but the Tribunal did not accept that this was relevant to their decision, as the only question for determination was whether the Tribunal considered there were exceptional circumstances preventing the claimant submitting her claim for unfair dismissal within the initial six-month time limit.
The Tribunal found the claimant to be a credible and cogent witness and took into account the medical certificates submitted up to and including July 2012 stating the claimant was unfit for work due to depression. These certificates corroborated her evidence and the evidence given by her spouse. It is clear that the claimant was medically diagnosed with depression and was under treatment for same, for at least six months after the date of dismissal. Depression has been recognised as a disability under the terms of the Employment Equality Acts 1998 to 2011. The Tribunal accepts the claimant’s evidence as to the debilitating and disabling effects of the illness upon her, and that it prevented her from submitting her claim within the time limited for same.
The Tribunal therefore find there were exceptional circumstances preventing the claimant submitting her claim for unfair dismissal within the six-month time limit and extend the time to submit the claim for a further six months. Accordingly, the Tribunal finds in favour of the claimant regarding the preliminary issue and will hear evidence regarding the substantive issue in due course.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)