UD937/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                               CASE NO.

Margaret Stafford                                                                                                       UD937/2013                 

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

Ferns Diocesan Youth Service Ltd

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Ms D.  Donovan B.L.

Members:     Mr J.  Browne

                     Ms S.  Kelly

heard this appeal at Wexford on 7th April 2015

Representation:

_______________

Appellant:             In person

Respondent:         IBEC, South East, Confederation House, Waterford Business Park,

                             Cork Road, Cork.

This case came before the Tribunal by way of an appeal against the recommendation/decision of a Rights’ Commissioner References:  r-128519-ud-12/MMG.

Background:

The appellant worked for the respondent on a series of fixed term contracts.   She had initially commenced on a FÁS CE Scheme on 10th June 2008 until 10th June 2011.  She was immediately thereafter employed by the respondent on a series of part-time short fixed-term contracts until 31st March 2012 when her employment terminated according to the respondent due to expiration of her fixed term contract and that the failure to offer her another fixed term contract was due to lack of funding.

During her employment the appellant had graduated with a degree in Social Studies.  

At the time of termination the appellant worked seven hours per week. Shortly prior to her termination she interviewed for a seventeen-hour post with the respondent and the appellant and another employee were offered half these hours each.   The appellant felt she should have been offered all these hours in addition to the seven hours she was already had.   The appellant then applied for a full-time post with the respondent but was not short listed for interview on the basis that she did not meet the criteria for the post.   The appellant disputed that she did not possess the criteria for this post as she was well qualified and had been interviewed for a similar position with the respondent previously and had scored well at the interview.   Shortly thereafter the appellant’s short-term contract expired and was she was not offered another the stated reason being lack of funding.    

The appellant claims she was unfairly dismissed. The respondents disputes this claim but submits in any event that the appellant is not entitled to the benefit of the Unfair Dismissals Acts 1977-2007 as she did not have a year’s service claiming that the time spent on the FÁS CE Scheme did not count as service.

The respondent further submitted that the appellant had not lodged her claim within the six months as required by section 8(2) of the Unfair Dismissals Acts 1977. The appellant requested an extension of time for exceptional circumstances.   This issue was decided as a preliminary issue.

Preliminary Issue:  

The appellant accepted that she had lodged her claim outside the six-month period but requested an extension of time for exceptional circumstances.  She said she was unfamiliar with these matters.   She said that due to family circumstances, which she outlined to the Tribunal, and due to the fact that around the material time she had to take care of a young girl that although she intended to lodge her claim she had let the six-month period expire.

The respondent said the fact that the appellant had during the relevant six-month period lodged a claim with the Equality Authority arising from the same set of facts indicated that although the appellant may have had family difficulties they had not prevented her from lodging the claim to the Equality Authority in time and therefore was not an exceptional circumstance.

Determination on the Preliminary Issue:

Having heard the evidence of the parties and the submissions the Tribunal finds that the claimant lodged her claim on 14^th November 2012 two weeks outside the six-month limitation period imposed by section 8(2) of the Unfair Dismissal Act 1977.

The appellant applied for an extension of time.   The Tribunal has jurisdiction under section 8(2) of the Unfair Dismissal Act 1977 by s.7(c) of the Unfair Dismissals (Amendment) Act 1993 to extend the six-month limitation period for a further six months if it is satisfied that the failure by the appellant to lodge her application within the said six months was due to “exceptional circumstances”.    The Tribunal accepts that time limits are not supposed to trap an applicant who acts in good faith but nonetheless the Tribunal is bound by the “exceptional circumstances” test for extending time under the section.   The “exceptional circumstances” provision has in the past been strictly construed by the Tribunal.

The Tribunal accepts that the six-month limitation period is short but that is what the legislature intended. The Tribunal notes that under the old s.8(2) of the 1977 Act there was no provision at all for extending time and the Tribunal held it had no inherent jurisdiction to alter either by abridgement or by extension any provision made by the legislature fixing a time limit for the taking of any step (see Cherubini v Joseph Downes & Son Ltd UD 22/1978).

The appellant had lodged a claim arising from the same circumstances with the Equality Authority within the six-month limitation period and the Tribunal must therefore accept the submission of the respondent that if the appellant’s circumstances had not prevented her from doing this it also should not have prevented her from lodging a claim at the same time to the Rights Commissioner/ Employment Appeals Tribunal.

For the foregoing reasons the Tribunal is satisfied that there were no exceptional circumstances which prevented the lodging of the claim within the six month limitation period provided by section 8(2) of the Unfair Dismissals Act 1977 by s.7(c) of the Unfair Dismissals (Amendment) Act 1993 and accordingly the Tribunal cannot exercise its jurisdiction to extend time. In the circumstances the Tribunal has no jurisdiction to hear the claim under the Unfair Dismissals Act 1977 (as amended) and therefore upholds the decision of the Rights Commissioner.   

In the circumstances the Tribunal did not find it necessary to decide whether the appellant satisfied the one-year service requirement.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)