UD589/2015

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                                CASE NO.

Jason Cronin                           -appellant

                                                                                                                         UD589/2015

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

Rigney Dolphin                      -respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. N. Russell

Members:     Mr. J. Hennessy

Mr. F. Dorgan

heard this appeal at Waterford on 1st September 2015

Representation:

Appellant:       Mr. Kevin Byrne B.L. instructed by Ms. Finola Cronin,

Dobbyn & McCoy, Solicitors, 4/5 Colbeck Street, Waterford

Respondent:    Mr. Shaun Boylan B.L. instructed by Heffernan Foskin, Solicitors,

Otteran House, South Parade, Waterford

Background:

This appeal came before the Tribunal by way of an employee (the appellant) appealing against a Rights Commissioner Determination under the Unfair Dismissals Acts (reference: r-143486-ud-14/MMG).

Determination on preliminary issue:

The Tribunal gave lengthy consideration to the evidence and submissions before it in determining the preliminary issue of whether to extend time. The date of the dismissal was the 23^rd July 2013. The claim was filed in February 2014, outside of the six-month period. The appellant asked the Tribunal to hold that there had been exceptional circumstances that led to the delay and requested that it extend time.

The Tribunal heard evidence from the appellant's doctor, who informed the Tribunal that the appellant consulted him in January 2014 and that he diagnosed reactive depression and prescribed medication. It was Dr. M’s evidence that he did not consider the appellant at the time to be capable of prosecuting an unfair dismissal claim. There were no medical records in existence.

Counsel for the respondent sought an adjournment to have the appellant medically examined however; the Tribunal did not accede to the application on the grounds that the Tribunal, from its perspective, did not believe that anything of evidential value could be expected to come from any such examination.

The Tribunal had before it a diagnosis of reactive depression based on a medical examination conducted in or about the time when the six month period for the appellant to bring his claim expired.

The evidence of the appellant was that he felt he was “going nowhere”; was humiliated, embarrassed and devoid of confidence and had “hit a wall”. This had seemed to the Tribunal to be consistent with the appellant being symptomatic prior to the January 2014 diagnosis. He told the Tribunal that he was “trying to be a man”. The Tribunal accepts Dr. M’s evidence that suffering from reactive depression the appellant’s state of mind and well-being would have been such as to affect his ability to act in his own best interests in this matter and to file his claim in a timely fashion.

Finding new work led to a lifting of the appellant’s reactive depression and a renewed capacity to deal with and progress his unfair dismissal claim.

The Tribunal did have due regard to the fact that the appellant’s medical condition was not advised to the Rights Commissioner at the initial hearing, however, on balance it accepts the explanation given that the appellant was anxious to preserve confidentiality around the issue of his mental health in January 2014.

The Tribunal finds that there are “exceptional circumstances” and extends the time for the appellant’s filing of his claim under the Unfair Dismissals Acts, 1977 to 2007, thus upsetting the Rights Commissioner Determination (reference: (reference: r-143486-ud-14/MMG).

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)