UD498/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                               CASE NO.

Martin Higgins                                                                                              UD498/2013

                                                                                 (appellant)

against the recommendation of the Rights Commissioner in the case of:

Superquinn Limited T/A Musgrave Operating Partners Limited

                                                                                    (respondent)

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms V. Gates BL

Members:     Mr. L. Tobin

                   Mr T. Brady

heard this appeal at Dublin on 7th May 2014

Representation:

_______________

Appellant(s) :             Collins Crowley, Solicitors, 2a Christchurch Hall, High

                                    Street, Dublin 8

Respondent(s) :          Waters And Associates, Solicitors, Unit 1a, Hyde Court,

                                    Shaw Street, Dublin 2

The determination of the Tribunal was as follows:

Preliminary Issue

This case came before the Tribunal by way of an employee appeal of a Rights Commissioner recommendation under the Unfair Dismissals Acts, 1997 to 2007, reference r-127045-ud-12/DI.

Both parties made extensive written (filed) and oral (noted) submissions relying upon various legal authorities.

The appellant’s representative told the Tribunal that the appellant had failed to submit his claim within the required six month period as a result of lack of proper legal advice and representation.

Giving evidence the appellant stated that he worked for the respondent company for over 30 years commencing part time in 1979 and then as a full time employee from November, 1982. The respondent company operates a supermarket chain nationwide and the appellant was employed as a retail assistant.

A letter of dismissal was issued by the respondent to the appellant dated 16^th March 2012. The appeal hearing was held on 11 April, 2012 and the dismissal was upheld. The appellant lodged his appeal with the Rights Commissioner on 9^th October, 2012.

The appellant stated that he was unsure as to his legal rights and tried to contact his Trade Union and later contacted the Glin Centre for advice. He dealt with an officer who told him he would be able to help him and to leave matters with him.   This situation dragged on for five months at the end of which the officer told him he could not do anything to help the appellant. The Rights Commissioner service was not mentioned to the appellant. The officer told him to try his local Law Centre and the appellant went to the law Centre in August, 2012 where he met a solicitor. The solicitor told the appellant he would call him in 10/14 days. When the solicitor contacted him he told the appellant that there was no funding to pursue the matter. The appellant was referred to another legal centre. When he rang this centre he left a message on an answering machine but did not receive a return call.

The appellant subsequently logged onto the internet in late September, 2012 and contacted a solicitor’s office for advice and an application was filed with the Labour Relations Commission.

Under cross-examination, the appellant confirmed that he was a member of a trade union and that his trade union representative had attended the disciplinary meeting and appeal meeting. The appellant stated that he rang his trade union after the dismissal but got no reply. The appellant indicated that he felt his union rights were lost once he had been dismissed and therefore did not pursue any discussions with his union. Although there was a shop steward in place the appellant did not make contact with him as he thought ‘that was it’ once he had been dismissed.

The respondent’s representative submitted that the appellant was not prevented from taking a claim within the six month time limit and indicated that no exceptional circumstance existed in this instance.

Preliminary Determination:

This case came before the Tribunal pursuant to the appellant’s Appeal to the Rights Commissioner’s Recommendation dated 12^th April, 2013 pursuant to the Unfair Dismissals Acts, 1977 – 2007.

At the Hearing before the Rights Commissioner and the Tribunal, the Respondent raised a preliminary issue that the claim was statue barred as the appellant had failed to submit his Application within the 6 month time limit prescribed by Section 8(2)(a) of the Unfair Dismissals Act, 1977 and that there were no exceptional circumstances warranting the exercise of the discretion to extend the time limit for initiating a claim pursuant to Section 8(2)(b) of the Act.

Counsel for the appellant submitted that exceptional circumstances warranting an extension of the statutory time limit existed on the grounds of the insufficiency of legal advice obtained by the appellant following termination of employment.

In reaching its decision, the Tribunal has carefully considered the evidence of the appellant, the oral and written submissions of both parties’ representatives and the case law cited in support of each parties’ position.

The following matters were not in dispute at the Hearing before the Tribunal:-

1. The appellant’s employment was terminated on 16^th March, 2012 on the grounds of gross misconduct.
2. The appellant was represented during the internal process by a Mandate Trade Union Official.
3. An internal Appeal Hearing took place on 11^th April, 2012 which concluded that the decision to terminate the appellant’s employment was reasonable in all the circumstances.
4. Application was made by the appellant to the Labour Relations Commission on 9^th October, 2012 and a Hearing before a Rights Commissioner took place on 12^th December, 2012.
5. On 12^th April, 2013, the recommendation of the Rights Commissioner found, inter alia, that there were no exceptional circumstances preventing the appellant from presenting his claim to a Rights Commissioner within an initial six month period from the date of dismissal and that, therefore, an extension of time was not relevant to the circumstances of the case.

The question for the determination of the Tribunal in this case, is whether the appellant was prevented, by exceptional circumstances, from initiating a claim for redress within the six month time limit prescribed by Section 8 of the 1977 Act. As each case must be decided upon its own facts, the Tribunal, in reaching its decision, has considered whether the circumstances relied upon by the appellant are exceptional and whether those circumstances prevented the appellant from making an Application to the Rights Commissioner within the statutory time period.

From the evidence adduced by the appellant, it appears that the appellant was represented throughout the internal process by an Official of his Trade Union. Following the unsuccessful outcome of the Appeal Hearing, the appellant made one telephone call to that Official which the appellant alleged remained unanswered. Thereafter, the appellant attended at the Glin Centre and discussed his situation with the Employment Officer. The appellant made a number of follow up telephone calls to that Officer who eventually told the appellant that he could not assist further but referred him to the Coolock Law Centre. In August, 2012, the appellant attended at the Law Centre and was sometime later advised that the Centre had insufficient resources to assist. The appellant telephoned the Finglas Law Centre and alleged that his telephone call remained unanswered. In late September, 2012, the appellant contacted Messrs. Collins Crowley, Solicitors which said firm immediately made Application to the Labour Relations Commissioner on his behalf.

The Tribunal has carefully considered the evidence of the appellant and is of the view that the appellant was aware of his entitlement to further redress and failed to appropriately, adequately or actively pursue that entitlement. The Tribunal is not satisfied that the appellant was sufficiently proactive in seeking advice and assistance in respect of further redress, particularly from his Trade Union Official who was the party in the best position to advise the appellant in respect of initiating a claim for further redress. The appellant did not adduce any evidence of a medical condition preventing the initiating of a claim and was in a position to secure alternate employment within 3 weeks of termination of employment.

The Tribunal finds, in all the circumstances, that the failure on the part of the appellant to obtain further advice and representation following dismissal was solely due to a lack of proactivity on his own part and, therefore, there were no exceptional circumstances preventing the submitting of a claim within the statutory six month time limit, and, accordingly, the recommendation of the Rights Commissioner is upheld.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)