ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001031

Complaint for Resolution:

Date of Adjudication Hearing: 17/05/2016

At:                          Workplace Relations Commission, Haddington Road, Dublin 4.

A Worker / A Respondent

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with 8(1B) of the Unfair Dismissals Act, 1977 and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background 

The Complainant was employed from 16^th January 2006 until the employment was terminated on 12^th May 2015. The Complainant was paid €965.00 per month and he worked a 42 hour week. The Complainant referred a complaint to the Workplace Relations Commission on 22^nd December 2015 alleging the Respondent had unfairly dismissed him. He cited the date of his dismissal as being 8^th October 2015, being the date he was requested to return the property of the Company.

Preliminary Issue. – Time Limits.

Section 8 (2) of the Unfair Dismissals Act, 1977, as amended provides as follows:

“A claim for redress under this Act shall be initiated by giving a notice in writing ……to the Director General (a) within the period of 6 months beginning on the date of the relevant dismissal or (b) within such period not exceeding 12 months from the date of the relevant dismissal at the adjudication officerconsiders appropriate, in the circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause.”.

In summary the Respondent argued the Complainant was dismissed on 12^th May 2015. The Complainant was always aware of this as evidenced by letters issued to him by the Respondent on 11^th June 2015 and 23^rd June 2015. The letter of 11^th June 2015 states that the dismissal date of 12h May 2015 stood notwithstanding that payment of the payment to be made to him in lieu of his notice period and accrued but untaken annual leave was to be postponed pending the outcome of his appeal in relation to his dismissal. The letter of 23^rd June 2015 again informs him that his employment had terminated on 12^th May 2015and that it was no longer necessary for him to submit Medical Certificates. The Complainant’s pay in lieu of notice and his accrued annual leave entitlements were paid to him on 8^th October hence the Complainant’s claim that he was not dismissed until 8^th October 2015. The Respondent further argued that the Complainant cannot satisfy the test that he was prevented from lodging his complaint due to reasonable cause. The outcome of his appeal was communicated to the Complainant by letter dated 18^th September 2015 yet the complaint was not lodged before the expiry of the 6 month time limit of 11^th November 2015. The Complaint was not lodged until 22^nd December 2015.

In summary the Complainant argued that he does not accept his effective date of dismissal was 12^th May 2015. The Complainant engaged in the internal Disciplinary Process from 4^th September 2014 until he was informed of the outcome of the Disciplinary and Appeal Process on 18^th September 2015. In reality the Complainant “was dismissed on the finding of the appeal board, 18^th September 2015 and given the statutory period as outlined under Section 8 (2) of the Unfair Dismissals Act 1977 -2015 his application before the Workplace Relations Commission of the 18^th December 2015 was well within the statutory period prescribed”.

The Complainant then argued there was “reasonable cause” for an extension of time and argued that granting an extension of time would not prejudice the Respondent, that if the six months expired on 11^th November 2015 the complaint was delayed by only 5 weeks and that the Complainant was not guilty of any culpable delay.

Findings

On the basis of the submissions made to me in relation to the date of dismissal and to an extension of time application I find and decide as follows-

1. Following an Investigation and Disciplinary Process the Complainant was dismissed by letter dated 12^th May 2015. Section 1 of the Act defines “date of dismissal” as (a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires. (b) where either prior notice of such termination is not given or the notice given does not comply with the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates- (i) the earliest date that would be in compliance with the provisions of the contract of employment, (ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973, (c ) ………

2. The letter of dismissal of 12^th May states as follows: As you have been dismissed for gross misconduct, your employment will terminate immediately. While we would be within our rights not to pay you in lieu of notice as you have been dismissed for gross misconduct, we have decided to pay you in lieu of your notice periodso as to alleviate the immediate financial repercussions of our decision. You will be paid four weeks’ pay in lieu of your notice period…….Your p45 will issue in due course. The Complainant was paid 4 week’s Minimum Notice in line with Section 4 (2) (c) of the 1973 Act.

3. Therefore in accordance with Section 1 of the Unfair Dismissals Act, 1977 as outlined above I find the date of dismissal is 11^th June 2015.

4. Therefore in accordance with Section 8(2) (a) of the Unfair Dismissals Act, 1977 the six-month time period expires on 13^th December 2015.

5. The Complainant was received at the Workplace Relations Commission on 22^nd December 2015 which is outside the time limit as set down by Section 8 (2)(a) of the Act.

6. The next issue to be determined is whether to grant an extension of time in accordance with Section 8 (2) (b) of the Act. This Section allows for an extension of time “where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause”. The Complainant and his legal representatives argued that the dismissal did not take place until 8^th October 2015 and further that the Respondent would not have been prejudiced by an extension. However the onus of proof is on the Complainant to show the reasons that prevented the complaint being lodged within the time limits and then to argue that the reasons so advanced were due to a reasonable cause.

7. I decide not to grant an extension of time under Section 8 (2)(b) of the Act as the Complainant or his Representatives did not advance any reason/s as to what prevented the Complainant from lodging his complaint with the specified time limit as set down by Section 8(2)(a) of the Act.

Decision 

I decide I do not have jurisdiction to hear this complaint as the complaint does not comply with Section 8 (2) (a) or (b) of the Act.

Date: 29^th July 2016