EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Caragh Neeson UD2049/2011
against
John O’Rourke & Seān O'Rourke Chartered Accountants
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms K T. O’Mahony B L
Members: Mr J. Hennessy
Mr D. McEvoy
heard this claim at Killarney on 6, 7 January, and 24 February, 2015
Representation:
Claimant : Ms Eliza Kelleher B L instructed by
Ms. Sarah Quill, Solicitor, Derryana, Ballyard, Tralee, Co Kerry
Respondent : Ms Caroline McEnery, HR Suite,
Pier 17, Dingle Road, Tralee, Co Kerry
The determination of the Tribunal was as follows:
The claim herein is a claim for constructive dismissal.
The respondent raised two preliminary issues before the Tribunal
First Preliminary Issue
The claimant lodged a claim for constructive dismissal under the Unfair Dismissals Acts (the Acts) with the Employment Appeals Tribunal (the Tribunal) as well as a personal injuries action in the Circuit Court, both relying on the same events in the course of the employment.
The respondent contended that the Tribunal should decline jurisdiction to hear the claim for constructive dismissal lodged with it under the Acts because of the possible overlapping issues between it and the claimant’s personal injuries action for alleged bullying and harassment at common law before the Circuit Court. In the alternative the respondent sought to adjourn the hearing of the constructive dismissal claim pending the outcome of the claimant’s personal injuries action in the Circuit Court.
Determination on First Preliminary Issue
Section 15 of the Unfair Dismissals Acts is concerned with the alternative forms of redress available under statute or at common law to a dismissed employee as well as the non-availability of those forms of redress in certain circumstances. The new subsection (3) of section 15 of the Principal Act as substituted by section 10 of the Amendment Act of 1993 provides:
(3) Where the hearing by a court of proceedings for damages at common law for wrongful dismissal of an employee has commenced, the employee shall not be entitled to redress under this Act in respect of the dismissal to which the proceedings relate.”
The Tribunal notes that the old subsection (3) of the Principal Act, as distinguished from the new subsection, precluded redress under the Unfair Dismissal Acts if a claim for damages for wrongful dismissal at common law had been initiated by or on behalf of the employee. The new subsection precludes redress under the Acts where the hearing by the court has commenced. Leaving aside the issue of the nature of the action before the Circuit Court and the case law on that issue and applying the amended subsection (3) the Tribunal noted that the hearing of the action before the Circuit Court has not commenced. Accordingly, the Tribunal is not precluded from hearing the claim under the Unfair Dismissals Acts. Furthermore, being aware that a dismissal may have a traumatic effect on a claimant as well having as other long term consequences for a dismissed employee, the Tribunal feels that in the circumstances, the claimant is entitled to a finding as to the fairness or otherwise of her constructive dismissal claim. The Circuit Court can only make such a finding on an appeal from a determination of the Tribunal. Accordingly, the Tribunal does not accede to the application and accepts jurisdiction to hear the claim.
Second Preliminary Issue
In its second preliminary application the respondent contended that the Tribunal did not have jurisdiction to hear the claim under the Unfair Dismissals Acts 1977 to 2007 as the claim had been lodged while the claimant was still in the employment of the respondent.
In order to address the second preliminary issue the Tribunal opted to take evidence on this matter in conjunction with evidence on the substantive case.
Summary of Evidence Relevant to Second Preliminary Issue
The claimant lodged her claim for unfair dismissal (T1-A form) with the Employment Appeals Tribunal on 21 October 2011. On that form the date that her employment ended was stated to be 26 April 2011. In the course of copious evidence it emerged that the claimant still engaged with the respondent as an employee subsequent to that date. This engagement took the form of submitting medical certificates to the respondent from the end of April 2011 up to March 2012, certifying her to be suffering from work related stress. The first of these medical certificates, which was dated 20 April 2011, covered her absence for the period 26 April 2011 to 2 May 2011, which commenced on the date she was due to return to work following her month’s leave in connection with her accountancy examinations. This was the first medical certificate which indicated to the respondent that the claimant was suffering from work related stress. On receipt of the medical certificates the respondent wrote to the claimant on five occasions 28 April, 18 May, 10 June, 13 July and 25 July 2011; the first three letters effectively inviting her to discuss the work situation with a view to resolving the causes of her stress and the latter two centred on making an appointment for her with a doctor nominated by the company.
On 9 August 2011 the claimant attended the doctor nominated by the company. His report stated that the claimant was suffering from genuine anxiety and depression which she attributed to work and that while she had been under pressure coping with work four days a week, looking after her young son on her own and studying for her accountancy examinations her medication helped her to cope over the previous eighteen months but the recent stress rendered her unable to cope. The report further advised that the parties discuss the problems with an independent arbitrator and envisaged that, with the help of meaningful discussions, the claimant would return to work within three to six months.
On 18 August 2011 the claimant’s legal representative wrote to the respondent outlining an employer’s duty of care to an employee under health and safety legislation and stated that the respondent’s alleged bullying, harassment and intimidation of the claimant forced her to go on sick leave. The statutory and common law reliefs available to the claimant were outlined in this letter and the possibility of discussing the matter was raised. By letters dated 2 September and 22 September the respondent’s representative sought a meeting to resolve the issues and enclosed the company doctor’s report with the latter.
A meeting was held on 12 October 2011 but the issues between the parties were neither resolved nor fully explored at that meeting as the respondent did not have sufficient time to consider the claimant’s eleven-page document of complaint which had been submitted to it the previous evening. At the meeting the claimant’s legal representative informed the respondent that the claimant’s medical advice was to not return to work with the respondent, then or in the future. In her letter dated 18 October 2011 the claimant’s legal representative indicated she was proceeding to issue unfair dismissal and personal injuries proceedings. In her letter of response dated 26 October the respondent’s representative denied the claimant’s allegations of bullying, harassment and intimidation and sought a copy of the claimant’s medical report advising her not to return to work. In that letter the representative expressed regret that the claimant felt that she “had no choice but to take matters forward” and indicated its willingness to meet with a view to discussing the claimant’s grievance and facilitating her return to work.
From the end of April 2011 up to March 2012 the claimant continued to submit medical certificates to the respondent. In December 2011 she received and accepted payment accrued in respect of public holidays during her period of sick leave from May 2011. In addition to this the claimant received illness benefits payments from the Department of Social Protection, appertaining to her absence from work with the respondent, up until February 2012. Her profile on a web-based site indicated that she regarded herself as an employee of the respondent from March 2006 up to January 2012.
On 12 January 2012 the claimant’s solicitor wrote to the respondent’s representative enclosing the GP’s letter to the effect that the claimant should not return to work with the respondent and continued “Further to the medical advice attached, our client has no choice but to request her P45…and…training records.”. The letter also contained an offer to discuss the claims entered by the claimant for constructive dismissal and personal injuries. In response, the respondent’s representative reiterated that the claimant’s position was still available but acknowledged that medical advice was such that she should not return to work with the respondent.
Determination on Second Preliminary Issue
To determine whether the claim herein is validly lodged the Tribunal it must first determine the date of dismissal. As this is a constructive dismissal claim the Tribunal must determine when the claimant terminated her employment with the respondent.
The claimant did not at any time submit a letter of resignation to the respondent.
According to the T1-A form signed by the claimant her employment ended on 26 April 2011, which was the date that she was due back to work following the expiry of her leave in connection with her accountancy examination but she did not show for work that day. However, it is clear that the claimant’s employment relationship with the respondent continued in existence beyond that date.
The claimant submitted medical certificates to the respondent from the end of April 2011 up to March 2012. The claimant received illness benefits payments from the Department of Social Protection up until February 2012, appertaining to her absence from work with the respondent; such payments are only available to employees. In December 2011 the claimant was paid her public holiday entitlements which had accrued while she was on sick leave. Her profile on a web based site indicated that she was employed by the respondent up to January 2012.
The Tribunal considered whether the claimant‘s employment ended on 4 April when she walked out of the meeting with SA and never returned, as contended for by the claimant; or, on 12 October 2011 when the claimant’s legal representative communicated the claimant’s medical advice to never return to the employment, to the respondent; or, on 18 October 2011 when the claimant’s legal representative indicated that they were proceeding to issue unfair dismissal and personal injuries proceedings; or finally, on January 2012 when the claimant’s legal representative requested the claimant’s P45 and training records. The Tribunal attached some weight to the communication of 18 October to the respondent wherein it is stated that unfair dismissal proceedings will be issued. However, the Tribunal being mindful that this is a claim for constructive dismissal, finds that the behaviour of the claimant as outlined in the immediately preceding paragraph herein combined with the relevant contents of the letter of 12 January 2012, as set out in the final paragraph of the summary of evidence herein, constitutes the termination of the claimant’s employment and her resignation from the respondent. Accordingly, the date of dismissal is 12/13 January 2012.
The Tribunal must next consider whether the unfair dismissal claim was validly lodged with the Tribunal so as to confer jurisdiction on the Tribunal to hear and determine the claim.
The new subsection (2) of section 8 of the Principal Act as substituted by section 8 of the Amendment Act of 1993 provides:
(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under section 17 of this Act made for the purposes of subsection (8) of this section) to a rights commissioner or the Tribunal, as the case may be—
(a) within the period of 6 months beginning on the date of the relevant dismissal, or
(b) if the rights commissioner or the Tribunal, as 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,
and a copy of the notice shall be given by the rights commissioner or the Tribunal, as the case may be, to the employer concerned as soon as may be after the receipt of the notice by the rights commissioner or the Tribunal.
The new subsection (2) provides for the lodging of a claim within the period of 6 months beginning on the date of the relevant dismissal as compared to the old subsection (2) which merely required the lodging of the claim “within 6 months of the date of the relevant dismissal”. The Tribunal is of the opinion that this amendment demonstrates a manifest intention by the legislature to preclude claims being lodged before the dismissal date.
The effect of a premature lodgement of a claim with the Tribunal was considered by the High Court in Brady v Employment Appeals Tribunal [2015] 26 ELR 1. In that case the employee was dismissed by reason of redundancy on 16 December 2011 and his claim was lodged with the Tribunal on 23 December 2011, which the respondent contended was prior to the statutory date of dismissal when the statutory notice period was taken into account, which in the particular circumstances was 30 December 2011. In finding that the lodgement of the claim on 23 December was good Barrett J. focused on a number of facts.
In paragraph 8 of his judgment, Barrett J stated:
“A number of issues come into play at this point. The first is that prescribed time periods are typically intended to thwart the tardy, not punish the prompt. The second is the longstanding principle of equity, good since at least the time of Smith v Clay (1761) 3 Bro CC 639n, that “Equity aids the vigilant, not the indolent”. The third is the practical issue of whether a person, here the Employment Appeals Tribunal, can be said not to have received notice within a prescribed period, if it had notice immediately prior to, at the commencement of , and througbehind hout that period. It seems to the court that in the particular circumstances of this case it would be absurd to hold that where the Employment Appeals Tribunal had notice of the claim at the commencement of, and throughout, the six month period that Mr Brady should be denied the opportunity to bring his claim because the Tribunal, through no fault of Mr Brady, may also have had notice of the claim immediately prior to the applicable six-month period.”
It seems to the Tribunal from a reading of Brady that the wording of the old subsection (2) was not before the High Court and there was no focus on the significance of the specific wording of the amending provision or on the intention behind it. In the old subsection the statutory stipulation was to give the notice “within 6 months of the date of the relevant dismissal” whereas the new statutory stipulation is “within the period of 6 months beginning on (emphasis added) the date of the relevant dismissal”. The Tribunal does not have the benefit of any evidence on the debate surrounding this change and what mischief it was trying to cure, before it. However, the Tribunal, focusing on the insertion of the words “beginning on” and giving these their natural and ordinary meaning, interprets the amendment to mean that a claim must be lodged after the dismissal. Thus, it finds that the claim, having been lodged prior to the dismissal, was not validly before the Tribunal. However, if the Tribunal is wrong in its conclusion on this issue it would come to the same decision by relying on paragraph 9 of Barrett J’s judgement, where he stated:
“Of course there will be some boundary in time and some circumstances in which an ostensibly premature notice will be found in fact to have been premature and thus not duly lodged within the appropriate time period for the purposes of s.8(2).”
In considering this statement the Tribunal notes that in the instant case the claim was lodged some twelve weeks before the date of dismissal. On the other hand, in Brady and in Matthews v Sandisk UD331/2010, (which Barrett J found supported his conclusions) the claims were respectively lodged one week and two and a half weeks before the respective dates of dismissal, There were other significant factors in Brady, in particular, Barrett J found that I in informing Mr Brady on 16 September that his dismissal was effective “Now” constituted a clear and unequivocal oral representation to him that his dismissal was “effective immediately” and that it would be unfair and inequitable to hold that the dismissal occurred some two weeks later on 30 December. Secondly, in failing to raise its objection on the jurisdictional issue of the early lodgement of the claim in a timely manner in its defence (form T2) the respondent had deprived the employee of the opportunity to cure this defect within the prescribed statutory time limit. The Tribunal, noting that this is a constructive dismissal case, and having considered the facts of this case, finds that the boundary in time and circumstances referred to by Barrett J in Brady do not exist in the instant case.
Furthermore, were the Tribunal to look with leniency on premature claims the system could well become clogged up with claims based on the expectation that a dismissal might occur sometime in the future which could be later withdrawn .
As the claim is not lodged in accordance with section 8 (2) of the Unfair Dismissals Acts, 1977 to 2007 the Tribunal cannot accept jurisdiction to determine the substantive case.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)