EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
EMPLOYEE UD1517/2012
against
EMPLOYER
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Ms A. Gaule
Ms S. O'Donnell
heard this claim at Dublin on 23rd January 2014
Representation:
Claimant:
Mr Hugh Hegarty, SIPTU, Misc, Liberty Hall, Dublin 1
Respondent:
Ms Róisín Bradley, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
Determination:
The Tribunal has carefully considered the legal submissions, arguments, documents and oral evidence adduced herein. The Tribunal has been invited to deal with a preliminary issue which goes to the Tribunal’s jurisdiction to hear this case.
The claimant’s T1A initiating her claim was received by the Employment Appeals Tribunal on the 4th October 2012. The claim was brought on foot of a disciplinary process culminating in a letter of the 10th September 2012 purporting to disclose the “Result of the disciplinary hearing 6th September 2012”. In said letter the respondent company states,
“The company views your actions as gross misconduct and therefore has taken the decision to terminate your employment with immediate affect”
In addition the letter states,
“I have instructed the Payroll Department to pay eight weeks basic salary from Monday 10th of September”
The respondent has asked that the Tribunal would interpret the letter as intending that the claimant was being told that her employment was terminating as a result of gross misconduct, that the claimant’s employment would terminate immediately and that payment would be paid in lieu of an eight week notice period.
The Tribunal notes that the claimant would be entitled to eight weeks notice under statute as she has the requisite service of over fifteen years.
The claimant has invited the Tribunal to construe the letter of September 10th as being one of Summary Dismissal for Gross Misconduct and that the words “immediate affect” give weight to this construction. The claimant also argues that the respondent never intended to recognise a right to notice and that the sum of money equal to eight weeks basic pay was intended as a “goodwill gesture” of some sort.
It is worth noting that the sum of money which eight weeks pay came to was €4,539.28 and this amount was paid to the claimant through payroll on the 13th of September and was accompanied by the P45 also dated 10th September.
The respondent claims that the claimant’s notice (T1A) to the Tribunal was therefore pre-emptive and that neither the claimant nor the claimant’s representative took into account the eight week notice period which would have run from the 10th September 2012. The respondent makes the case that the actual date of termination must be the date of the expiry of the notice period for which the claimant was paid in lieu, which date in these circumstances is the 12th November 2012.
It is long recognised by the Tribunal and is prescriptively imposed by the legislation that the date of dismissal will be the date on which notice expires (whether notice is imposed by contract or statute).
The claimant asks the Tribunal to resolve any ambiguity with respect to notice in favour of the employee. The Tribunal would be of the view that where such an ambiguity exists the first thing the Tribunal should do is to imply that notice is always intended to be given and such an implication is in the employee’s favour.
The Tribunal heard evidence from the claimant on her own behalf and from BW on behalf of the respondent. BW cannot recall suggesting there would be a “goodwill gesture”. The claimant had no understanding what her rights under the Minimum Notice Acts were and how the concept of payment in lieu would operate.
On balance and on considering the submissions made and the evidence adduced the Tribunal cannot accept that the instruction to payroll to pay eight weeks of basic pay from a particular date can be interpreted as meaning anything other than an intention to dispose of obligations accruing under the Minimum Notice and Terms of Employment Act, 1973. The eight weeks is in strict compliance of the Act and the use of the word “from” a particular date lends weight to the idea that a time is running from that date.
The Tribunal is therefore satisfied that the date of termination of employment herein is the 12th of November 2012 which means that the six month time period within which there is an entitlement to bring a claim commenced on the 13th of November 2012 and the claimant’s T1A was therefore received too early and in the course of her on-going employment.
The Tribunal therefore has no jurisdiction to proceed with a claim under the unfair dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)