EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD882/2015
CLAIM(S) OF:
Christine Morgan
against
The Shamrock Gift Company (Trading House)
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. N. O'Carroll-Kelly BL
Members: Mr. F. Moloney
Mr. P. Trehy
heard this case in Dublin on 15 July 2016
Representation:
_______________
Claimant(s):
Eugene Smartt, Solicitor, Newlands Retail Centre, Newlands Cross, Clondalkin, Dublin 22
Respondent(s):
Mr. Paul Rochford for Mr. Eamonn McCoy, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
An unfair dismissal claim was brought by a general operative who had begun her employment in February 1999 and ended in February 2015. The claimant raised grievances to management particularly as to alleged bullying by supervisory staff. However, it was alleged that the respondent had not addressed this effectively. Subsequent to a director’s request the claimant made another complaint. Consequently, the claimant was allegedly subjected to further stress such that she could not continue in her employment.
The respondent, contesting the claim, said that the claimant had resigned on 5 February 2015 and that her claim was brought on 7 August 2015 i.e. outside the required six months. The claimant’s representative countered that the claimant’s P45 had been dated 22 February 2015.
Determination:
Preliminary Application.
The claimant commenced her employment with the respondent on the 8th February, 1999. There was an issue in relation to the date of termination. On the complaint form submitted by the claimant, the date her employment ended is stated to be 25th February, 2015.The respondent states that it was the 5th February, 2015. In that regard the respondent relied on the claimant’s solicitor’s letter of resignation dated the 5th February, 2015 wherein it states
“ Please further note that my client is unable to return to her employment with your company due to the manner in which she was treated prior to going on sick leave. In those circumstances, my client considers herself dismissed and I am taking instructions with regards to initiating a constructive dismissal claim”
That claim was not lodged until the 7th August, 2015, two days outside the statutory 6 month period.
“Section 8 (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.”
Section 7 (2) (b) of the 1993 Act allows the Tribunal to extend the time from 6 months to 12 months in exceptional circumstances.
“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”
Byrne -v- P. J. Quigley Limited [1995] E.L.R. 205 sets out the test to be applied in order to meet the exceptional circumstances criteria. The claimant did not address the Tribunal in relation to any circumstances, exceptional or otherwise, that might have prevented her from lodging her claim within the 6 month time limit. On that basis the Tribunal can only conclude that no such circumstances existed.
The claimant argued that her statutory notice period should be added to the date of resignation bringing the date of termination well within the six month time limit.
S.4(1) The Minimum Notice and Terms of Employment Act, 1973 states:
“An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section”
The Tribunal is satisfied that Section 4 (1) does not apply to a situation where the claimant resigns.
In all of the circumstances the Tribunal finds that the claimant’s case is statute-barred and therefore the Tribunal has no jurisdiction to hear the matter.
The claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)