EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NOS
Employee – claimant UD2436/2011
MN2435/2011
RP2968/2011
WT973/2011
against
Employer – respondent
Under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS 1973 TO 2005
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
ORGANISATION OF WORKING TIME ACT 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms K. T. O’Mahony BL
Members: Mr P. Casey
Mr O. Wills
heard this appeal at Cork on 11th July 2013
Representation
Claimant: Ms Emer O’Callaghan of Barry M. O’Meara & Son Solicitors,
18 South Mall, Cork
Respondent: Ms Mairead Crosby of IBEC, Confederation House,
84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal is as follows
The claims under the Minimum Notice and Terms of Employment Acts 1973 to 2005 and under the Organisation of Working Time Act 1997 were withdrawn.
Preliminary Issue
The Tribunal was asked to determine the date of dismissal to establish whether the claimant’s claim under the Unfair Dismissals Acts which had been lodged with the Tribunal on 23 December 2011 was within or outside the six-month statutory time limit for initiating a claim as prescribed by section 8 (2) of the Acts.
Summary of Evidence
Following a disciplinary hearing on 24 May 2011, the claimant was informed by letter of even date of the decision to dismiss him. The letter went on to state: “As per the terms of the Minimum Notice and Terms of Employment Acts, 1973-2001, you are entitled to two weeks basic pay, to be paid in lieu of notice; therefore your contract with [the respondent] will cease on 7/6/11. Your P45 will also be issued in due course. Any remaining monies owed to you will be paid upon receipt of your uniform …” The claimant was further informed in the letter that he could appeal the decision within 5 days of receipt of the letter. The claimant’s appeal was heard on 20 June 2011. On 24 June 2011 the claimant received a letter dated 20 June 2011 from the respondent informing him that the decision to dismiss him was upheld.
Determination
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 6 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.
Section 1 of the Unfair Dismissals Act, 1977 defines “date of dismissal”. The relevant definition for the purposes of this case is, “(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions … of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.
The respondent contended that the date of dismissal is 7 June 2011, the date the claimant’s notice expired and that the claim is out of time.
The claimant contended the date of dismissal was 24 June 2011, the day he was notified that his appeal was unsuccessful and that therefore his appeal, lodged with the Tribunal on 23 December 2011, was within the six-month statutory time limit.
The Tribunal considered case law referred to in the legal submissions on behalf of the parties. In both Tom O’Neill v Bank of Ireland [1993] ELR 145 and Savage v J SainsburyLtd.[1980] ILRL 109 a contractual term governed the interim period between the initial notification of dismissal to the employee andthe notification of the decision on his appeal. While in the instant case the claimant’s contract of employment was silent on this issue an examination of those cases can be of benefit to the Tribunal in its deliberations on the issue before it.
In O’Neill the respondent’s disciplinary procedures provided for two appeals where an employee was dismissed: the first, an internal appeal “pending which no disciplinary action will be taken” and a further external appeal. The EAT construing these provisions held that the dismissal became effective prior to the external appeal.
In Savage v J Sainsbury Ltd. [1980] ILRL 109 the term incorporated into the employees’ contract of employment provided: “Pending the decision of an appeal to a Director against dismissal, the employee will be suspended without pay, but if reinstated, will receive full back-pay for the period of suspension.” The English Court of Appeal, upholding the judgment of English Employment Appeals Tribunal construed the term to mean, that the date of dismissal is the date the initial decision to dismiss is notified to the claimant and not the date he received notification that his appeal had failed. Brightman LJ, delivering the unanimous decision of the Court of Appeal quoted with approval the following passage from the judgment of the EAT:
“In our view where a notice of immediate dismissal is given, the dismissal takes immediate effect. The provisions of this contract as to the appeals procedure continue to apply. If an appeal is entered then the dismissed employee is to be treated as being “suspended” without pay during the determination of his appeal, in the sense that if the appeal is successful then he is reinstated and he will receive full back pay for the period of the suspension. If the appeal is not successful and it is decided that the original decision of instant dismissal was right and it is affirmed, then the dismissal takes effect on the original date. In our view that is the date on which the termination takes effect for the purposes of the Act.”
Brightman LJ later continued:
“I find it difficult to improve on the reasoning of the Employment Appeal Tribunal …. It seems to me clear that, to take an example, if an employee is dismissed on 1 January, on the terms that he then ceases to have the right to work, under the contract of employment, and that the employer ceases likewise to be under an obligation to pay the employee, the contract of employment is at an end … If he has no right to work after 1 January and no right to be paid after 1 January, the contract of employment must have been determined as from 1 January.”
The decision inSavage was approved by the House of Lords (now the English Supreme Court) in West Midlands Co-Operative Society Ltd v Tipton [1986] IRLR112 where Lord Bridge of Harwich agreed that “in the absence of an express contractual provision to the contrary” the effective date of dismissal is the date of the initial notification of the dismissal to the employee.
The Tribunal considers the foregoing to be the correct statement of the law on the issue. There was no term in the claimant’s contract of employment saving the contract pending the hearing of his appeal. Accordingly, the date of dismissal is not the date he was notified that his appeal was unsuccessful but, applying the relevant provision in section1of the Act (see above), the date when the claimant’s statutory notice expired on 7 June. Thus, the claim under the Unfair Dismissals Acts, having being lodged on 23 December, more than six months after the date of his dismissal, is out of time and the Tribunal has no jurisdiction to hear the claim under the Unfair Dismissals Acts, 1977 to 2007.
As the appeal under the Redundancy Payments Acts 1967 to 1977 was not pursued the claim under those Acts is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)