EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Kim Cullen claimant UD23/2013
against
Argos Distributors (Ireland) Limited respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr D. Hayes BL
Members: Mr M. Noone
Mr P. Trehy
heard this appeal at Dublin on 14th April 2014
Representation:
Claimant: Mr Paul Brady of Paul Brady & Co. Solicitors,
3 Railway Street, Navan, Co. Meath
Respondent: Mr Eamonn McCoy of IBEC,
Confederation House, 84/86 Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
Preliminary Issue
The fact of dismissal is in dispute. The respondent’s representative told the Tribunal that on 10th December 2012 when the claimant lodged her Workplace Relations Complaint Form, she was still an employee and therefore the Tribunal has no jurisdiction to hear the claim.
The Tribunal heard evidence relating to the Preliminary Issue only.
Determination
The claimant was employed by the respondent in its Wexford branch. She instituted a claim to the Tribunal on 10th December 2012. She had not worked since 18th June 2012. Although not expressed explicitly on her claim form, she was, in essence, bringing her claim as a constructive dismissal arising from victimisation and harassment. The respondent sought to have the jurisdiction of the Tribunal to hear the claim determined as a preliminary issue. The basis of the application was that the claimant had not resigned her employment and nor had she been dismissed before her claim had been submitted.
The Tribunal heard submissions from both parties. The net effect of the submissions was a contradiction as to whether the claimant had resigned or not. Accordingly, evidence was adduced, which evidence was confined to the issue of the date of resignation or otherwise and did not relate to the claimant’s substantive complaint.
The claimant told the Tribunal that an incident had happened on the 17th June 2012. Later, in the course of cross-examination she corrected this date to 18th June. It is not necessary for the purpose of the preliminary application to determine which of the two dates is correct. For ease of reference, and without making any determination on the matter, the Tribunal will, for the purposes of this determination refer to the 18th June 2012.
On that date, her supervisor, PC, and another colleague were present. When the incident complained of took place, the claimant told PC that she couldn’t “do this anymore” and that she was “going”. She announced her intention to empty her locker. No evidence was adduced by the respondent to refute this evidence and the Tribunal, accordingly, accepts it. However, the Tribunal is not satisfied that these constitute clear and unambiguous words of resignation.
The claimant did not return to work in the Wexford store and commenced the submission of medical certificates. These certificates continued to be submitted until March 2014. The claimant gave an explanation that, as she was claiming a Social Welfare disability benefit, she thought that she had to continue submitting certificates to her former employer. Whether or not that was the case, by continuing to submit medical certificates she clearly created the impression for her employer that she considered herself in its employment.
In August 2012, the claimant held a discussion with someone in the respondent’s HR department, on foot of which she sent an email on 27th August 2012 in which she sought “to explain the circumstances surrounding my absence from work”. She went on to make what was a complaint of bullying and harassment. Her email appears to have been taken as such a complaint by the respondent and she was told that it was being treated as a grievance and would be investigated. It is of note that the claimant herself refers to “the circumstances surrounding my absence from work” and not in any way to her resignation. The claimant, in her email also spoke of being brought to a point
“where I feel no longer able to continue to work under these conditions. This is not the first incident of this type of attitude; it finally culminated in me feeling the professional atmosphere intolerable. I am currently under the care of the doctor, due to anxiety and stress. I feel it would be in everyone’s best interests to get this situation resolved as soon as possible, and am hoping we can meet to discuss a resolution”.
The claimant subsequently attended a meeting with TM, who was conducting the investigation into the claimant’s grievance. The claimant told the Tribunal that she confirmed to TM that she had resigned. Although she accepted that she did not use the word “resignation”. TM told the Tribunal that there was no reference during their meeting to the claimant having resigned. The Tribunal is not satisfied that the Claimant told TM that she had resigned. The Tribunal is satisfied that the claimant expressed a preference to TM that she not return to work in the Wexford store. However, there was a discussion at the meeting about her returning to work in another store. The claimant could not remember what her response was to this proposal. Her daughter had attended the meeting as a witness. She said there was some talk about working in another store and that she thought it related to part-time work and that she thought that the claimant had said no to it.
The claimant told the Tribunal that she did not receive the report of the grievance investigation or any correspondence sent to her by the respondent after it had received the claim to the Tribunal and after it had received claims under the Employment Equality and Industrial Relations Acts. The Tribunal does not need to make a determination on this issue.
The Tribunal is satisfied that at no time did the claimant resign her employment in clear and unambiguous terms. There are circumstances in which the words used by the claimant could be construed as words of resignation. This case is not such a circumstance. Her conduct subsequent to her comments on 18th June 2012 must be considered. It is clear that she demonstrated a significant degree of frustration resulting from how she perceived she was being treated. However it is also clear that she started to submit medical certificates. It is clear that she made a complaint on foot of a grievance subsequent to what she says was her resignation. On the face of her written complaint she made no reference to her resignation and merely talked about her absence from work. She sought an early resolution of her complaint. She discussed a possible resolution of a move to another store. Had the claimant considered that she had resigned on 18th June 2012, these are all things she would not likely have done.
It does not appear to the Tribunal that the claimant’s employment has been terminated at all. It is certainly clear that it had not been terminated either by dismissal or resignation before her claim was submitted on 10th December 2012.
Section 8 (2) of the Unfair Dismissals Act 1977, as amended, provides as follows:
A claim for redress under this Act shall be initiated by giving a notice in writing â 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.
A claim to the Tribunal can only be submitted “within the period of six months beginning on the date of the relevant dismissal”. There was no relevant dismissal on or before 10th December 2012 and the claim accordingly, was not submitted within the time delimited by statute. A claim cannot be made to the Tribunal under the Unfair Dismissals Acts 1977 to 2007 before a dismissal, within the meaning of the Acts, has taken place.
The Tribunal, in the circumstances, is satisfied that it does not have jurisdiction to hear this claim. Accordingly, it accedes to the respondent’s preliminary application and dismisses the claim.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)