EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1200/2014
MN612/2014
CLAIM(S) OF:
Eunan Doyle
against
Conduit Enterprises Limited
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. E. Daly B.L.
Members: Mr. D. Morrison
Ms. R. Kerrigan
heard this claim at Letterkenny on 28th January 2016 and 19th May 2016
Representation:
_______________
Claimant: Ms. Fidelma Carron, SIPTU, Membership Information & Support Centre, 8th Floor, Liberty Hall, Dublin 1
Respondent: Mr Declan Thomas, IBEC, 3rd Floor, Pier One, Quay Street, Donegal Town
Preliminary Issue:
The Tribunal was asked to determine the date of dismissal to establish whether the claimant’s claim under the Unfair Dismissals Acts which had been lodged with the Tribunal on 13 August 2014 was within or outside the six-month statutory time limit for initiating a claim as prescribed by section 8 (2) of the Acts.
Summary of Evidence
Following investigation meetings on 18th December 2013 and 13th January 2014, the claimant was informed of the decision to dismiss him on 4th February 2014 for gross misconduct. A letter (titled termination of employment document) stated: that following investigations and based on facts before us C(the respondent) has made the decision to terminate theemployment. It was a summary dismissal and without notice or payment in lieu of notice. The letter also stated that an appeal could be made within 5 working days of receipt of same.
The claimant appealed within the 5 day period and the appeal was heard on 9th April 2014. On 24th June 2014 the claimant received a letter dated 20th June 2014 from the respondent informing him of the outcome of the appeal and stating that the decision to dismiss was upheld.
It was the respondent’s contention that the date of dismissal was 4th February, not the June date which is the date after the appeals process was finalised. Case law was provided to the Tribunal.
The claimant’s representative argued that the appeals process outcome was the company’s final decision and therefore the date of dismissal. The contract states that “the outcome of the appeal is the Company’s final decision”.
The claimant told the Tribunal that he contacted his union representative after receiving the outcome of the appeal, upholding the original decision. He had been represented throughout the process so he then contacted his representative who advised him that he had six months to take a case of Unfair Dismissal. They arranged to meet in July and then proceeded with their claim, which was received by the Employment Appeals Tribunal on 13th August 2014.
Preliminary determination:
Dissenting opinion of Mr Morrison:
No evidence was adduced from the claimant that any exceptional circumstances occurred preventing him from taking his claim within the six months following his actual dismissal.
He was represented at all times during the process and it was only at the Tribunal hearing that the claimant’s representative brought up the appeal procedure as outlined in the contract.
Previous case law (including higher authorities - in Savage v Sainsbury Ltd) all point to the fact that the date of dismissal is the actual date that the dismissal occurred, not the date of any appeal process. The claimant’s contract is not ambiguous in any way and is worded like most standard company contracts. Furthermore the claimant ceased to be paid by the respondent as and from 4th February 2014 and could have been in no doubt that his employment had been terminated as and from that date.
Majority decision:
The majority find that the dismissal date can be the date of termination unless the contract provides/permits an extension. The contract in this case states that the outcome of the appeal is the final decision. This can be construed as ambiguous. The outcome of the appeal can mean two different things and the Tribunal must favour the claimant (the weaker side). Exceptional circumstances arose in the length of time it took for the appeal to be heard by the respondent.
Section 7 of the respondent’s corrective action policy (appeals process) states that “ the outcome of the appeal is the Company’s final decision and there can be ambiguity as to what this means. It could be interpreted in one of two ways:
- that the outcome of the appeal is the final decision on the appeal only or
2. that the outcome of the appeal is the final decision in relation to the dismissal, or whatever corrective action is being applied..
As a result of this ambiguity the construction of the contract must be read against the drafter, namely the respondent.
The majority find that the appeal reads, or could be interpreted as, the final decision of the respondent in relation to the dismissal, in which case, the claimant is within the six month time limit under the Unfair Dismissals Acts 1977 to 2007.
The Tribunal therefore determines that it does have jurisdiction to hear the claim.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)