UD844/2013, UD780/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                  CASE NO.

Shuizi Hou                                                                                                      UD844/2013

                                                                                                                        UD780/2013

-        Claimant

Against

Joels Restaurant Limited

-        Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:      Ms J. McGovern B.L.

Members:       Mr. N. Ormond

                        Ms. E. Brezina

heard this claim at Dublin on 18th June 2014

Representation:

Claimant: Mr. Peter Rigney, Irish Congress Of Trade Unions, 31 Parnell Street, Dublin 1

Respondent: Arthur Cox, Solicitors, Earlsfort Centre, Earlsfort Terrace, Dublin 2

The determination of the Tribunal was as follows:-

Preliminary Issue

Dismissal as a fact was in dispute. The respondent raised a preliminary issue in respect of the Tribunal’s jurisdiction to hear the claim. The respondent maintained that the claimant’s claim was lodged out of time. The claimant submitted two separate complaint forms to the Employment Appeals Tribunal in respect of his employment with the respondent company and the date of termination differed on both forms.

The first complaint form stated the date of termination as 20^th May 2012 and was received by the Employment Appeals Tribunal on 28^th May 2013. Therefore the complaint was not received within the 6 month time limit as prescribed by section 8(2) of the Unfair Dismissal Act, 1977 (as amended) or was it within the 12 months allowed by reason of exceptional circumstances pursuant to section 7(2)(b) of the Unfair Dismissals Act, 1993:

The second complaint form stated the date of termination as 15^th January 2013 and was received by the Employment Appeals Tribunal on 4^th June 2013.

The respondent told the Tribunal that the claimant left his employment on 19^th May 2012 after an argument and subsequent attempts to contact him failed. The claimant was not in receipt of any payment from the respondent after this date.

The claimant’s representative told the Tribunal that the claimant left his employment on 19^th May 2012 after an argument. A meeting was arranged for the following week but this was cancelled by text at a later stage. For a period of time the claimant sought his P60 which was collected for him by a friend. When the claimant opened the envelope it contained his P45 not his P60. The claimant became aware of his dismissal from the respondent company at this stage. The claimant’s representative maintained therefore that the date of dismissal was 15 January 2013 as per the P45 and not 19^th May 2012.

The respondent’s representative told the Tribunal that the claimant walked out of his employment on 19^th May 2012 and a meeting was scheduled for 31^st May 2012 but the claimant did not attend.

Preliminary Determination

The Tribunal finds that the claim has been submitted out of time. The Tribunal received two complaint forms in respect of the above case and the date of termination differed on both forms.

An alleged incident occurred on 19^th May 2012. The respondent claims that the claimant effectively resigned as a result of this incident. The claimant indicated that, save for one text, cancelling a meeting for 23^rd May 2012 he heard nothing further from the respondent until January 2013, when he received his P45, making this the date of termination.

The Tribunal does not believe that this, 23^rd May 2012, is the date of termination. However, the Tribunal also does not believe that 19^th May 2012 was the date of termination given that both parties contended a further meeting, albeit on different dates, was arranged in late May 2012.

The Respondent submitted that a letter was sent to the claimant on 24^th May 2012 to which there was no response. This was the last correspondence with the claimant until his P45 was sent in August (which the claimant said he did not receive until January). The claimant was not paid post May 2012 and never seems to have queried this with the respondent.

It is significant to the Tribunal that the claimant’s year long student visa expired on 10^th August 2012. While the visa was renewed no replacement was forwarded to the respondent. If the claimant considered himself still employed or had any employment relationship with the respondent this visa would have been material. It appears to the Tribunal that this latest date dismissal could have occurred as claimant could not legally work with the respondent past this date.

For the above reason if 10^th August 2012 was the date of termination it remains outside of the aforementioned 6 month period allowed to issue a complaint to this Tribunal. No exceptional circumstances were outlined to the Tribunal on behalf of the claimant which justify an extension of the time limit. Therefore the claim is barred by section 8 of the Unfair Dismissals Act 1977 as amended by section 7(2)(b) of the Unfair Dismissals Act, 1993:

If the rights commissioner or the Tribunal, 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.

In the circumstances the Tribunal does not have jurisdiction to hear the claim under the Unfair Dismissals Acts 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)