EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD190/2014
CLAIM OF:
Eileen Fitzgerald -Claimant
against
HSE South -Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms S. Mc Nally
Members: Ms M. Sweeney
Ms H. Kelleher
heard this claim at Cork on 5th June 2015
Representation:
Claimant: Ms J Fitzgerald c/o Waterpark, Fermoy, Co. Cork
Respondent:
Ms Maria Daly, Employee Relations Manager, HSE South, Model Bus Pk, Model Farm Road, Cork
Ms Deirdre Malone, Comyn Kelleher Tobin, Solicitors, 29 South Mall, Cork
Background:
The Respondent representative raised a preliminary point as to the jurisdiction of the claim. The Respondent contends that the claim under the Unfair Dismissals Acts, 1977 to 2007, was not lodged with the Tribunal within six months of the dismissal.
The Tribunal heard evidence from both of the parties and the parties opened documentation to the Tribunal.
Determination:
The Claimant’s date of dismissal was on 22nd July 2013. The claim under the Act was received by the Tribunal on 2nd February 2014. There was according to parties, ongoing correspondence and or talks between the parties from the date of dismissal. The Respondent wrote to the Claimant on 29th October 2013, and in this letter objected to an “investigation” hearing before a Rights Commissioner under the Industrial Relations Acts 1946 to 2004.
Letter of 29th October 2013 stated as follows:
“I refer to your latest correspondence regarding your retirement on the grounds of reaching the retirement age as per the terms and conditions of the pension scheme to which you were contributing. I wish to acknowledge receipt of the completed HR Forms. However, I note from the aforementioned forms that you are signing the same "without prejudice to rights to contest compulsory retirement". I would refer you to my letter of the 26th of September which sets out the position of the Respondent on this matter.
I wish to .restate that your retirement from your post of Home Help, with the Respondent, is appropriate and is consistent with the terms and conditions associated with the Pension Scheme applicable to your contract of employment.
I would also advise that, as you are a retired member of staff, the Respondent will be objecting to an investigation by a Rights Commissioner on this matter on the basis that any such referral is inappropriate, inconsistent with the provisions of the Industrial Relations Acts 1946 to 2004 and is therefore, not within the jurisdiction of the Rights Commissioner.
I would advise that you may wish to pursue the matter to the Pension Ombudsman in line with the disputes resolution framework provided for within the superannuation legislation. In light of SIPTU's representations to the Respondent on your behalf to date, I would advise that you would discuss this matter further with your union.
Therefore, the Respondent is accepting your completed forms as an exceptional measure and to facilitate you to access your pension entitlements. However, the Respondent does not accept your completed forms with the provisions included by you I wish to again state that your retirement from your employment with the Respondent is appropriate and fully comprehended within the agreed terms and conditions of your contract of employment.”
However the Tribunal notes that the Claimant was represented by a Trade Union and was fully cognisant of her situation. The Claimant contends that she had a meeting with her trade union on 29th January 2014 and at that meeting she was told that they would “not be able to go any further with her case”. The Claimant then proceeded within a few days to lodge a claim under the Unfair Dismissals Acts, 1977 to 2007. The reason for her lodging the claim outside of the six months was that she was only made aware on the 29th of January 2014 that her union would not be representing her case further /prosecuting her case further.
A claim under the Unfair Dismissals Acts, 1977 to 2007, must be submitted to the Rights Commissioner or to the Tribunal within six months, as provided for in S 8 (2) of the 1977 Act, the relevant section states as follows:
“(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, within 6 months of the date of the relevant dismissal and a copy of the notice shall be given to the employer concerned within the same period.”
This section has been amended by S. 7 (2) b of the 1993 Act which provides with the following sub section:
“( 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”
The definition of exceptional circumstances as stated in the above section has been considered extensively by both the Courts and Tribunals and in particular in the case of In Byrne v PJ Quigley Ltd [1995[ ELR 205. It was further relied upon in the determination UD1031/2011.
“The term ‘exceptional circumstances’ is not defined in the Act but it was considered by the Employment Appeals Tribunal In Byrne v PJ Quigley Ltd [1995[ ELR 205 where it was stated that the words ‘exceptional circumstances’ are ‘strong words’ and should be contrasted with the milder words ‘reasonably practical’ … or ‘reasonable cause’. ‘Exceptional means something out of the ordinary. At the very least the circumstances must be unusual, probably quite unusual but not necessarily highly unusual….
Thus the Tribunal must ask itself (i) whether exceptional circumstances existed within the six month period immediately following the dismissal and if they did (ii) whether those circumstances prevented the appellant from lodging the claim within that six month period.”
A three pronged test was effectively set out in this case as follows;
- That exceptional circumstances were something out of the ordinary or unusual
- That those circumstances prevented her from lodging a claim
- That they exceptional circumstances existed within the 6 month period immediately following the dismissal.
The Tribunal having heard all of the evidence and submissions from the parties determines that the Claimant has not shown that the circumstances presented were exceptional circumstances that prevented her from actually lodging her claim within six months. Furthermore the Tribunal notes that the circumstance relied upon by the Claimant, having consulted with her trade union about her dissatisfaction about her dismissal within the prescribed statutory period, was that she was not made aware by her union that they would not be representing her case further until the 29th of January 2014, is a circumstance that this is outside of the 6 month time limit.
The Tribunal determines that exceptional circumstances did not exist during the six-month period immediately following the dismissal. As no exceptional circumstances existed that prevented her to lodge a claim under the Unfair Dismissals Acts 1977 to 2007 it must logically follow that no exceptional circumstances prevented her from lodging her claim within that six month period. .
It must also be noted that from case law it is clear that knowledge (or the lack of it) of the prescribed time limits is not a relevant factor to be considered in determining whether to extend the prescribed period
The Tribunal must decline jurisdiction in this case. The claim under the Unfair Dismissals Acts, 1977 to 2007, must fail.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)