EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD58/2015
CLAIM(S) OF:
John McIntyre
- Claimant
against
Ladbrokes (Ireland) Limited T/A Ladbrokes
- Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. E. Daly BL
Members: Mr. D. Morrison
Ms. A. Moore
heard this claim at Letterkenny on 12th April 2016
Representation:
Claimant: Mr. Ciaran Haran, Kieran O'Gorman, Solicitors, 62 Upper Main Street, Letterkenny, Co. Donegal
Respondent: Mr. Tiernan Lowey BL instructed by: Hayes, Solicitors, Lavery House, Earlsfort Terrace, Dublin 2
The determination of the Tribunal was as follows:-
At the outset a preliminary issue was raised by the representative for the respondent regarding the six-month time limit to lodge a claim under the Unfair Dismissals Acts, 1977 to 2007.
Preliminary Issue:
The claimant was employed as a Customer Services Manager in the respondent’s turf accountants from the 1st April 2006 until his employment was terminated on the 1st July 2014. The claimant lodged a claim form under the Unfair Dismissals Acts, 1977 to 2007 to the Workplace Relations Customer Service on the 14th January 2015. This was six months and thirteen days after his dismissal.
Section 8 (2) of the 1977 Act as amended by Section 7 (2) of the 1993 Unfair Dismissals Act states:
“7. Section 8 of the Principal Act is hereby amended by_
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 purpose 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 relevant dismissal, or
(b) If the rights commissioners 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 of the Tribunal, as the case may be, considers reasonable,”
The representative for the respondent stated there were no exceptional circumstances to extend the time in order for the Tribunal to extend the time limit to twelve months.
The representative for the claimant stated a claim form was completed online on behalf of the claimant by his office for unfair dismissal in October 2014. Inadvertently a box was ticked to state the claimant did not have twelve months service and in turn the Act the claim was taken under the Industrial Relations Act. The Labour Relations Commission acknowledged receipt of this claim on the 30th October 2014. A notice of hearing of this claim was submitted to the claimant’s representative on the 13th January 2015. The claimant’s solicitor then submitted an amended claim form citing a claim to be taken under the Unfair Dismissals Acts, 1977 to 2007 on the 14th January 2015.
The claimant’s representative stated that under these circumstances and the fact that the claimant was under medical supervision until October 2014 the time limit should be extended to twelve months.
Preliminary Determination:
Submissions have been filed by solicitors for the claimant and solicitors for the respondent.
The claim under the Unfair Dismissal Act was lodged outside the 6 months. An unfair dismissal claim under the Industrial Relations Acts was lodged within the 6 months but this is not the claim which the claimant wishes to pursue.
The question for the Tribunal is were there exceptional circumstances which prevented the lodging of a claim under the Unfair Dismissals Act.
The circumstances of the filing of the wrong claim were as follows:
A drop box option ticking a box which inaccurately stated that the claimant was employed less than twelve months was chosen by the solicitor for the claimant.
This automatically prompted an unfair dismissal claim being brought under the Industrial Relations Act instead of what was intended, namely the Unfair Dismissals Act.
The Tribunal is not aware as to the circumstances in which this error occurred because the solicitor who completed the form was not present before the Tribunal to explain the circumstances that prevailed.
This is unfortunate as the Tribunal accepts that there may well be circumstances whereby the introduction of a new online application form or unfamiliarity with it or overwork or illness or whatever might have been a valid reason for the error.
However, in the absence of any such evidence the Tribunal cannot rely on a contention that the circumstances were exceptional if they are not explained. A solicitor’s error is not of itself exceptional. The circumstances which gave rise to the error might well be but the error itself is not.
The application was brought under the wrong Act. A claim for unfair dismissal under the Industrial Relations Act is as valid as a claim for unfair dismissal under the Unfair Dismissals Act. But the former is what was lodged.
The compounding factor is that the claimant’s solicitor received acknowledgement from the Labour Relations Commission in October which confirmed that an unfair dismissal case under the Industrial Relations Acts had been lodged.
At this stage, had it been noticed, there was still sufficient time to lodge the accurate claim. However, this was not done.
The law is clear – the circumstances must be exceptional and must have prevented the claim being brought within the six months. This has not been met and, therefore, the Tribunal decides, with great reluctance, (because denying a claimant the right to have his case heard is not a decision that has been reached lightly) that, as it has no option but to apply S.8 (2), it has no jurisdiction to hear this claim.
The claim under the Unfair Dismissals Acts, 1977 to 2007, is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)