EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Kenneth Cummins
- claimant
UD508/2014
against
Riverside Foods Limited
- respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. Fahy B.L.
Members: Mr. W. O'Carroll
Ms H. Henry
heard this claim at Galway on 11th December 2015
Representation:
Claimant: Mr Diarmuid Fawsitt BL instructed by:
Ms Barbara Sherry, Sherry McCaffery, Solicitors, 2 Green Park Park,
Orwell Road, Dublin 14
Respondent: Mr John O’Donnell BL instructed by:
Mr Justin Sadlier, Sadlier Lynch Pierse, Solicitors, Crow Street, Gort, Co Galway
Preliminary Issue:
The claimant’s employment terminated on 24 May 2013 and a Workplace Relations Complaint was received by the Workplace Relations Customer Service on 26 March 2014.
Section 8 (2) of the Unfair Dismissals Acts as amended provides as follows:
“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-
(a) Within the period of 6 months beginning on the date of the relevant dismissal, or
(b) 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,…..”
The Tribunal proceeded to hear evidence from the claimant in relation to this preliminary issue.
Summary of Evidence on Preliminary Issue:
The claimant gave evidence that he was forced to resign from his employment following an allegation of theft made against him on a work related matter which he vehemently denied. He told the Tribunal that he tried to resolve the matter with his employer without any satisfaction and became stressed and depressed as a result of the allegation, and his unsuccessful attempts to have the matter resolved. In or around the time of his resignation he gave evidence that he contacted/attempted to contact his solicitor on numerous occasions and was told that he (his solicitor) would look after things and sort it out. He left the matter in his solicitor’s hands as he trusted him. Ultimately his solicitor never progressed the matter and he (the claimant) lodged his claim form on 26 March 2014. He also attended his G.P. and a counsellor as he became stressed due to rumours circulating about him.
In cross-examination he accepted that his solicitor wrote to him on 4 June 2013 and 9 July 2013 seeking his instructions. This was followed by a further letter dated 9 October 2013. He accepted that he did not respond in writing to these letters, but told the Tribunal that he contacted his solicitor’s office by telephone on numerous occasions leaving messages for his solicitor to contact him. He stated that his solicitor failed to return his calls. He could not recall if he ever told his solicitor to bring a claim to the EAT.
The Tribunal heard evidence from the claimant’s G.P. that he attended her practice reporting ongoing stress and insomnia. He presented with levels of anxiety and had no previous history of anxiety. He attributed his stress and anxiety to his dispute in the workplace. He appeared to her objectively as being stressed, and she confirmed that the employment history reported to her by the claimant would contribute to anxiety. He was prescribed sleeping tablets. She confirmed that her report which was compiled in August 2015, (a copy of which was opened to the Tribunal), does not make any reference to whether or not the claimant was capable of making a decision in relation to making a claim, or instructing a solicitor. This matter simply never arose in her interaction with the claimant.
Determination on Preliminary Issue:
This case has come before the Employment Appeals Tribunal by way of a claim for constructive dismissal brought by the Claimant against the Respondent in respect of his employment. A preliminary issue has been raised by the Respondent concerning the jurisdiction of the Tribunal to hear the case as the claim was not lodged with the Tribunal within the statutory time limit of six months, following the ending of the employment with the Respondent.
The Claimant’s employment ceased with the Respondent on the 24th May 2013 with his application for redress submitted and received by the Workplace Relations Commission on the 7th April 2014. The statutory period for submitting a claim under the Unfair Dismissals Acts, 1977 to 2007 is six months as provided at Section 8 (2) of the Unfair Dismissals Act, 1977
It is common case that the claim was submitted outside the statutory six month period and the Respondent submitted that the Tribunal did not have jurisdiction to hear the substantive claim maintained by the Claimant.
The Claimant has sought to invoke a provision in the Unfair Dismissals (Amendment) Act, 1993, which provides at Section 7(2)(b) as follows,: “if the rights commissioner or the Tribunal, as the case may be, is satisfied that exceptional circumstances prevented the giving of notice within the period aforesaid, then within such period not exceeding 12 months from the date of the aforesaid as the rights commissioners or the Tribunal, as the case may be, considers reasonable.” The period aforesaid is six months from the date of the termination of the employment.
The Tribunal heard evidence from the Claimant that he was very stressed after leaving his employment and that he wanted to clear his name as an allegation of theft had been made against him by his employer. The Claimant called medical evidence which showed that he attended his doctor after the termination of his employment, with a stress related condition. The doctor, under cross examination, told the Tribunal that the stress related condition would not have prevented the Claimant from giving instructions to his solicitor during the relevant period, which was within six months after the termination of his employment.
Counsel for the Claimant submitted that the Claimant was unwell after the termination of his employment and that he was not in a position to give proper instructions to his solicitors, within the relevant six month period and that this was an appropriate case where Section 7(2)(b) of the Unfair Dismissals (Amendment) Act, 1993 should apply.
It was also submitted on behalf of the Claimant that he had instructed another firm of solicitors, to lodge a claim for constructive dismissal within the appropriate time period and his instructions were not followed through. The Workplace Relations Complaint Form completed by the Claimant says: “I approached a solicitor (name of solicitor) who said he would bring a claim to the EAT in respect of constructive dismissal but without explanation he did not do so. This is the reason I have not lodged my complaint within the required 6 months and wish to request that it be considered now due to extenuating circumstances.”
The Tribunal have considered all the evidence submitted by and on behalf of the Claimant, and while the time period immediately following the termination of his employment was a stressful period, the medical evidence available to the Tribunal does not support the view that he was unable to give instructions to his solicitors at this time. The Tribunal are satisfied that, the reason(s) for not completing and lodging a claim within the statutory time period of six months as provided for under the Unfair Dismissals Act, 1977 do not amount to exceptional circumstances as provided for in Section 7(2) of the Unfair Dismissals (Amendment) Act, 1993, where the Tribunal can extend time for a further six months to maintain a claim under the Act. The Tribunal hereby declines jurisdiction in this case.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)