UD977/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                            CASE NO.

Michael Polgar                                                                                                UD977/2013

                                                                        Claimant

against

Sally Salon Services (Ireland) Limited

                                                                        Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. V. Gates B.L.

Members:   Mr. J. Horan

                   Mr T. Brady

heard this claim at Dublin on 4^th June 2014

Representation:

Claimant(s):     Mr. S. O’Sullivan BL instructed by

R. Shane Johnson, Mooney & Dowdall, Solicitors, Mary Street, Mullingar, Co Westmeath

Respondent(s):Mr. C. Power BL instructed by:

Robert Dever, Leman Solicitors, 8-34, Percy Place, Dublin 4

The determination of the Tribunal was as follows:-

Preliminary Issue:

A preliminary issue was raised by the respondent’s representative in respect of the time limit under which a claim can be lodged with the Employment Appeals Tribunal under the Unfair Dismissals Acts, 1977 to 2007.

Background:

This is a claim for alleged constructive dismissal. The claimant was employed as a Regional Equipment Manager for the respondent’s hair and beauty business. He commenced employment on the 2nd September 2010 and tendered his resignation on the 28^th June 2012. He was put on “garden leave” by the respondent for the duration of his notice period up to and including the 31^st August 2012.

The claimant submitted a claim for constructive dismissal under the Unfair Dismissals Acts, 1977 to 2007 which was received by the Workplace Relations Customer Service on the 9^th May 2013, some 8 months and 9 days after his termination.

Claimant’s Position:

The claimant and his solicitor gave evidence in respect of the exceptional circumstances preventing the lodging of a claim within the six month time limit prescribed Unfair Dismissals Acts, 1977.

The claimant told the Tribunal that he had attended a meeting with the respondent on the 28^th June 2012 where he had tendered his resignation. Minutes were taken at this meeting.

He rang his solicitor in August 2012 but was unsure of the exact date. On the 22^nd August 2012 he attended his solicitor’s office and left in a bag of documents. He said a copy of the minutes of the 28^th June meeting were not in the bag. He contacted the HR department of the respondent company regarding the acquisition of the minutes of the June meeting as his solicitor had informed him that they were very important.

He sent an email to his solicitor on the 19^th November 2012 regarding the matter. On the 27^th February 2013 he attended a consultation with his solicitor regarding the matter. He told the Tribunal that he thought his employment termination issue was being dealt with.

On cross-examination the claimant told the Tribunal that he had attended his solicitor while he was on “garden leave” from the respondent regarding his employment issues. When asked he agreed that he had received an email from the respondent on the 6^th July 2012 but he did not receive the minutes of the June meeting until sometime later. He accepted that there had been an issue with him receiving post during this time as he was living in another jurisdiction. When asked, he said that his post was forwarded to him by family members but had informed the respondent that his post should be sent to his new address.

When asked, he told the Tribunal that he only became aware of a “time issue” with his application for constructive dismissal the night before the hearing.

The claimant’s solicitor gave evidence. He agreed he had consulted with the claimant regarding his employment issue and the claimant had dropped in a bag of documents into his office in August 2012 but due to work and personal issues he had not looked into the matter in depth. He wrote to the respondent on the 4^th March 2013 stating that the claimant was proceeding with a case under the Unfair Dismissals Act and formally requested a copy of the “final investigation and determination report” immediately.

A signed but undated claim for constructive dismissal was lodged and received by the Workplace Relations Customer Service on the 9^th May 2013.

Preliminary Determination:

In this case, a claim under the Unfair Dismissals Acts, 1977 to 2007 was received by the Workplace Relations Customer Service on 9^th May, 2013. The date of termination of employment for the purposes of the Act is 31^st August, 2012. Accordingly, the claim for redress was not initiated within the statutory six month time limit prescribed by Section 8(2)(a) of the 1977 Act.

The Claimant relied upon two grounds in seeking an extension of time pursuant to Section 8(2)(b) of the 1977 Act on the grounds that the same constitute exceptional circumstances preventing the Claimant from initiating a claim within the six month time limit as follows:-

1. The failure of the Claimant’s Solicitor to submit the claim within the Statutory period;
2. The failure of the Respondent to furnish the Claimant with the notes of the investigation meeting.

The question for the determination of the Tribunal in this case is whether the Claimant 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 Claimant are exceptional and whether those circumstances prevented the Claimant from filing his Application within the Statutory time period.

From the evidence adduced by the Claimant and his Solicitor, it appears that the Claimant initially telephoned his Solicitor in relation to a claim for constructive dismissal and thereafter on 22^nd August, 2012 attended at his Solicitor’s Office to deliver a bundle of documents. Thereafter, the Claimant contacted the HR Department of the Respondent Company requesting a copy of the Minutes taken at the meeting on the 28^th June, 2013, at which he had tendered his resignation. The Claimant accepted that he had received an email from the Respondent Company on 6^th July, 2012 confirming that the requested documents had been sent to his Northern Ireland address. The only other contact which the Claimant made with his Solicitor during 2012 was by way of email on 19^th November, 2012.

The Tribunal has carefully considered the evidence of the Claimant and his Solicitor and the submissions made on behalf of both parties. The Tribunal is not satisfied that the Claimant was sufficiently proactive in instructing his Solicitor to deal with the matter on his behalf nor is it satisfied that the Claimant did not receive the notes of the June, 2012 Meeting as alleged. The Claimant accepted that he had received an email on 6^th July, 2012 indicating the notes had been sent to a Northern Ireland address and he ought to have recovered the same from that address and/or requested an immediate re-issue of the same to any alternate address.   The Tribunal is of the view that a claim could have been initiated in the absence of the notes of the meeting.

The Tribunal finds that, in all the circumstances, the Claimant has failed to establish that exceptional circumstances prevented him from initiating a claim within the statutory six month time limit and, accordingly, the Tribunal has no jurisdiction to extend the time limit in order to hear the substantive case and the claim under the Unfair Dismissals Acts 1977 – 2007 fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

    (CHAIRMAN)