EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD581/2015
CLAIM(S) OF:
Thomas Byrne (claimant)
Against
Riverfront Hotels Limited T/A Spencer Hotel (respondent)
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr D. Hayes B.L.
Members: Mr E. Handley
Mr C. Ryan
heard this claim at Dublin on 3rd May 2016
Representation:
_______________
Claimant(s) : In person
Respondent(s) : Mr. Peter McKenna B.L. instructed by Mackey O'Sullivan, Solicitors, 10 Merrion Square, Dublin 2
Ms Magda Egan, Group HR Manager, The Spencer Hotel, Excise Walk, Ifsc, Dublin 1
The determination of the Tribunal was as follows:
The claimant was dismissed from his employment on 23rd July 2014. The reason for his dismissal was one of redundancy. The claimant did not accept that this was a genuine reason and lodged a claim with the Tribunal on 14th May 2015, not quite ten months after his dismissal. His claim was lodged outside the period of six months beginning on the date of his dismissal but within the period of twelve months. It falls into the period in respect of which the Tribunal has a discretion, albeit limited, to enlarge the time for him to bring his claim.
The Tribunal heard evidence and submissions from both parties.
The claimant told the Tribunal that he had attended a branch of Citizen’s Information and had asked that they submit a claim form on his behalf. That form was submitted to the Rights Commissioners’ Service in respect of a claim under the Protection of Employment Act, 1977, being a claim for collective redundancy. It is not clear why a claim was made under that Act rather than under the Unfair Dismissals Acts.
That claim was heard by a Rights Commissioner on 3th January 2015. The result of that hearing was that the Rights Commissioner issued a recommendation on 30th March 2015 in which she held that she did not have jurisdiction to hear the claim, on the basis that the claimant’s redundancy was not a collective redundancy.
It is important for the purpose of this determination to recount what took place at the Rights Commissioner’s hearing. The Tribunal heard evidence from ME, the respondent’s HR manager and also from the claimant. Both agreed that the Rights Commissioner listened to the claimant’s submissions and then heard submissions from ME. In the course of ME’s submissions she told the Rights Commissioner that there had been only two redundancies. The Rights Commissioner confirmed with the claimant that this was so. The claimant told the Tribunal that ME had raised a technical issue about collectivity and that he, the claimant, asked the Rights Commissioner whether he had done something incorrect and that he had been told by the Rights Commissioner that she was not there to advise him. ME told the Tribunal that the Rights Commissioner had been somewhat more explicit and that she explained to the parties that, as this was not a collective redundancy situation, she had no jurisdiction to hear the claim. ME further told the Tribunal that the claimant then asked the Rights Commissioner whether she was saying that he had proceeded under the wrong Act. To that question the Rights Commissioner replied that she could not advise him how to proceed but that she could not hear a claim for unfair dismissal. The Rights Commissioner also made it clear that she was going to issue a decision that she had no jurisdiction based on this not being a collective redundancy. The Tribunal accepts as correct ME’s account of the Rights Commissioner hearing.
The Tribunal is satisfied that the claimant was told on 13th January 2015 that his situation did not constitute a collective redundancy and that, accordingly, the Rights Commissioner had no jurisdiction to hear the case. The Tribunal is also satisfied that the claimant asked whether he had submitted his claim under the incorrect Act and was told that the Rights Commissioner could not advise him in this regard. The Tribunal is satisfied that, at the very least, the claimant knew that there was a problem with his claim. Having asked for advice he was told that the Rights Commissioner could not advise him. Notwithstanding his clear awareness that he needed advice, he did not then seek any further advice until early May 2015.
The Oireachtas has created a six-month time limit within which claims for unfair dismissal must be brought. A limited jurisdiction to extend that six-month time limit was given to the Tribunal by s.8(2)(b) of the Unfair Dismissals Act, 1977 as amended. That provision states as follows:
“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.”
Since the case of Byrne v. P.J. Quigley Ltd. [1995] ELR 205 the “exceptional circumstances” clause has been interpreted as requiring some circumstance that is out of the ordinary or unusual but not necessarily highly unusual. The exceptional circumstance must have prevented the lodging of the claim and must have arisen during the initial six-month period.
The Tribunal is satisfied that the circumstances that led to the late submission of this claim do not justify it exercising its discretion to extend time. A claim was submitted on the claimant’s behalf seeking relief under incorrect legislation. That this had been done in error was clear to the claimant within the period of six months after his dismissal. He was also alive to his need for further advice yet did not seek it for nearly a further five months. The Tribunal does not accept that it was reasonable for him to delay until after he had formally received the Right’s Commissioner’s ruling. He knew what it was to be. It is not necessary for the Tribunal to decide whether the error on the part of Citizen’s Information constituted an exceptional circumstance as, even if it did, the Tribunal is satisfied that it did not prevent the claimant from lodging his claim within time as it came to light when still within time. Further, a tardy claimant is not, as of right, entitled to a full further six months and given that it was not reasonable of him to further delay by nearly five months the Tribunal would not have been minded in this case to fully extend the time.
In the circumstances, the Tribunal is not satisfied that this is an appropriate case in which to exercise its discretion to extend the time. Accordingly, this claim under the Unfair Dismissals Acts, 1977 to 2003 must fail.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)