EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Maamar Sekkoum-claimant UD19/2014
Against
Johnston Mooney & O'Brien Bakeries - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. Revington S.C.
Members: Mr M. Carr
Mr J. Flannery
heard this claim at Dublin on 4th February 2015, 18th March 2015 and 5th May 2015
Representation:
_______________
Claimant(s): Mr Brendan Walsh, Walsh & Company, Solicitors,
51 Dublin Street, Dundalk, Co Louth
Respondent(s): Mr Peter McInnes, McInnes Dunne, Solicitors,
Lower Ground Floor, 78 Merrion Square South, Dublin 2
The determination of the Tribunal was as follows:-
Preliminary Issue:
The claimant submitted on his workplace relations complaint form that his employment was terminated on 16th November 2012. The form was received by the Tribunal on 31st October 2013 and as such was submitted outside the six-month time period allowed under the Unfair Dismissals Acts. The Tribunal may extend the period for a further six months if exceptional circumstances existed which prevented the claimant from lodging the claim within the statutory six-month period. The Tribunal heard evidence and submissions in respect of this preliminary issue.
Summary of Evidence:
A General Practitioner gave evidence to the Tribunal that the claimant came to see her on one occasion on 15th July 2013. He sought help to quit smoking, a cream for his back, and said that he was having trouble sleeping. She prescribed sleeping tablets for one week. He mentioned that he had trouble sleeping since he lost his job and that he was depressed since separating from his wife and children. There was no mention of suicidal inclination.
The claimant gave evidence that he became homeless two days after losing his job and had been sleeping in his car. He had received help and accommodation from his church. He was very depressed and could not eat or sleep for a long time. He was too stressed to make the application and was not capable of seeing anyone. His girlfriend convinced him to visit a GP in July 2013.
In cross-examination the claimant said he had not contacted a solicitor until eight or nine months after the dismissal. He agreed that on the day of dismissal he had said to two company employees that he would speak to his solicitor the following Monday. But he did not in fact contact a solicitor then.
The Tribunal heard submissions from both parties. The claimant’s representative submitted that by virtue of the claimant’s marital breakdown and homelessness leading to stress and depression the claimant had shown exceptional circumstances preventing him lodging the claim within six months. The respondent submitted that the claimant did not produce any medical evidence from the six-month period. The burden of proof was on the claimant and the respondent submitted that the evidence adduced was insufficient. Legal authorities were submitted to the Tribunal.
Determination:
Dr Mary Redmond’s Guide to Dismissal Law in Ireland (2nd Edition) [24.30] states:
‘…according to the EAT’s analysis of the new wording in Byrne v PJ Quigley Ltd. The employee had been aware of his entitlements under the Unfair Dismissals Acts and the employer, it was contended, had left him unaware of his status. The EAT by a majority found 3 elements involved in the statutory provisions as to extending the time limit:
The words ‘exceptional circumstances’ are strong words and should be contrasted with such milder words as ‘reasonably practicable’. ‘Exceptional’ means something out of the ordinary. At least the circumstances must be unusual, probably quite unusual, but not necessarily highly unusual.
(a) In order to extend the time limit the EAT must be satisfied that the exceptional circumstances ‘prevented’ lodging the claim within the general time limit. It is not sufficient if the exceptional circumstances caused or triggered the lodging of the claim.
(b) It seems to follow that the exceptional circumstances involved must arise within the first six months. If they arose later they could not be said to ‘prevent’ the claim being initiated within that period.
Further section [24.32] states:
A claimant may rely on illness to justify an extension of the time limit. In Murphy v Citizens Information Call Centre the EAT heard that the claimant was medically unable to complete the application form during the 6 months after her dismissal. To support this proposition the Tribunal said it would ordinarily require medical evidence from the claimant’s doctor. It would require, at a very minimum, a medical certificate in support of the claimant’s evidence. No medical evidence other than a copy of her GP’s notes had been adduced, apart from that of the claimant herself that her parents’ illness and her own emotional state constituted exceptional circumstances. The application failed.
The Tribunal finds that the burden of proof has not been discharged by the claimant in this case. There was no evidence produced from within the six-month period to show exceptional circumstances. Accordingly the claim is statute barred.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)