EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Sonia Byrne -claimant
UD747/2013
against
Gorey Family Chiropractic Clinic Limited -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr N. Russell
Members: Mr J. Horan
Mr J. Flannery
heard this claim at Wexford on 16th September 2014 and 10th December 2014
Representation:
Claimant: Mr. Finbar O’Gorman, The Rock, Knockina, Gorey, Co. Wexford
Respondent: Mr. Brian Dolan, Peninsula Business Services (Ireland) Ltd.,
Unit 3, Block S, East Point Business Park, Dublin 3
The determination of the Tribunal was as follows:-
A preliminary issue arises in relation to the claim by the claimant that she was dismissed. Notice of her claim was not given in writing within the 6 month period provided for in Section 8(2) Unfair Dismissals Act 1977.
In recognition of the need to allow for an extension of the 6 month period in exceptional cases, Section 7 (2) Unfair Dismissals Act 1993 provided that the 6 month period could be extended to 12 months in ‘exceptional circumstances’ which ‘prevented’ a claimant from giving the required written notice within the 6 month period provided for in Section 8(2) Unfair Dismissals Act 1977.
There are essentially two ‘legs’ to the test. Firstly, did ‘exceptional circumstances’ exist? Secondly, did these circumstances prevent the claimant from giving the required written notice?
The claimant informed the Tribunal that, after the termination of her employment, her health deteriorated significantly and she was unable physically or mentally to address issues surrounding the end of her employment. She was extremely distressed and shattered having, in her opinion, been forced out of her employment. Her esteem was at an all time low. She regularly could not get out of bed and her husband had to take over the care of her children. It was at least 9 months before she felt stronger. She was unable to work in the six months following the end of her employment with the respondent.
She regularly consulted with her GP both on the lead up to the end of her employment and thereafter. In 2010 she had 22 visits, in 2011, 27 visits and in 2012, 17 visits. She was suffering significantly with stress related headaches. She had a CAT scan. She was diagnosed as suffering from a depressive illness.
The claimant was given an adjournment to afford her the opportunity to ask her general practitioner to attend before the Tribunal in support of her application for an extension of time beyond the 6 month period provided for in Section 8(2) Unfair Dismissal Act 1977. The doctor was unable to attend on the adjourned date.
The claimant advised the Tribunal that she suffered from a depressive illness which she later in her evidence described as stress-related migraines and headaches. She had not been diagnosed as suffering from depression.
The issue for the Tribunal is whether this illness prevented the claimant from giving written notice within the prescribed period thereby entitling her to an extension of time. The Tribunal is of the opinion that this depends on the nature and extent of the illness. The Tribunal is not a medical body and neither qualified nor capable of making a medical assessment or arriving at a medical determination and must look to expert medical opinion for guidance. The Tribunal must also ensure that, where this evidence is provided on behalf of either party to the proceedings, it is tested and not merely accepted at face value.
The claimant sought to have some medical certificates admitted in evidence but the respondent objected. The claimant did not produce her medical records and did not seek time to produce them. Accordingly, it was not necessary for the Tribunal to consider the admissibility issue surrounding such contemporaneous records. The claimant was asked if she wished the Tribunal to issue a subpoena for her doctor’s attendance but she did not wish a subpoena to issue.
When faced with evidence that she worked for a short period during the initial six months following the cessation of her employment with the respondent, the claimant informed the Tribunal that she had simply forgotten when previously questioned on this issue and that the period was a ‘blur.’
A witness was called by the respondent who provided evidence that the claimant had applied for and secured a temporary shop assistant position on the 26th of October 2012 within 5 months of the cessation of her employment with the respondent. She underwent in store training and fulfilled her duties during a 3 week period without issue. She tendered her resignation on the grounds that it was not financially viable for her to continue in the role.
The Tribunal has uncorroborated evidence from the claimant that she suffered from stress during the six month period following the cessation of her employment with the respondent. There is no independent medical evidence before the Tribunal as to the extent of the illness and as to whether it would have precluded the claimant from filing her unfair dismissals claim within the 6 month period prescribed by Section 8(2) Unfair Dismissals Act 1977.
Further, the Tribunal has uncontroverted evidence that the claimant applied for and secured employment within five months of the cessation of her employment with the respondent, completed forms relevant to that employment and fulfilled her duties.
The Tribunal considers that there were no circumstances present within the period of 6 months following the cessation of her employment with the respondent such as would have prevented the claimant from filing her claim within the prescribed period.
Accordingly the Tribunal holds that the claim lodged is out of time and no extension of time is granted. The Claimant fails on her preliminary application for an extension of time under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)