EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD172/2015
CLAIM OF:
Mark Ryan
against
C&F Automotive Limited T/A Iralco
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr P. Pierson
Mr. J. Dorney
heard this claim at Mullingar on 17th November 2015
Representation:
_______________
Claimant(s) :
Ms Elaine McDonald, J A Shaw & Company, Marlinstown Office Park, Mullingar, Co Westmeath
Respondent(s) :
No representation listed
The determination of the Tribunal was as follows:-
Determination
The Tribunal has carefully considered the issues that have been raised by way of a preliminary issue in the within proceedings. Very helpful submissions made by the parties were also provided to the Tribunal in the aftermath of the hearing day in November of 2015. The Tribunal notes that it has considered an Affidavit of a Ms. E McDonald dated the 18th of November 2015 together with the supporting correspondence and the Tribunal has had sight of the Respondent’s Submissions received in January of 2016.
The Tribunal has been asked to exercise it’s discretion to extend the time for the giving of notice of an intention to bring proceedings by the six months allowed under Section 7 of the Unfair Dismissals Act of 1993 where exceptional circumstances prevented notice being given within the six month period immediately after the termination of proceedings.
The evidence is that the Claimant’s Solicitor moved to lodge a claim on behalf of the Claimant within two months of the termination of Employment which had happened on the 6th of May 2014. The then (still to be established WRC) workplace Relations Complaint Form had recently been introduced as the vehicle by which workplace complaints and disputes should be brought to the attention of the different resolution bodies. The Tribunal accepts that there were difficulties with the roll out of this new on-line route and that people were unfamiliar with the new system.
The evidence tendered by the Claimant’s Solicitor is that she went to complete the e-complaint form and in particular had indicated all the relevant details in the Complainant’s details section including the length of service which was well over the 52 weeks demanded of persons seeking redress under the Unfair Dismissals legislation. In order that the Tribunal might fully understand what happened the Tribunal has had to consider the then new e-complaint form.
The Claimant’s Solicitor indicated (when asked by the system) that the complaint was in respect of an Unfair Dismissal. The e-complaint form asks a number of more detailed questions including whether the Claimant has 12 months service or not. Only the word “not” distinguishes the two questions and it is an unfortunate fact that the Claimant’s Solicitor ticked the box to say her client did not have the requisite service instead of the one that said he did have the requisite service.
Two things do not happen at this point in time. Firstly the e-complaint form does not flag the inconsistency with the information already given in the earlier box relating to start and finish dates of employment (wherein it has clearly been stated that 12 months service has been completed). Secondly, the form does not explain to the person filling the form in that they are now effectively being diverted away from the Unfair Dismissals legislations and into the less comforting area of bringing a dispute under Section 13 of Industrial Relations Act before a Rights Commissioner. In fact, if anything the question asking what redress you are seeking – reinstatement, reengagement of compensation- is consistent with a standard Unfair Dismissals claim under the relevant legislation. The Industrial Relations legislation is not even referred to.
The mistake only came to light when the matter came before a Rights Commissioner at which time the Claimant’s Solicitor was obliged to return to the appropriate Website and lodge a new complaint this time carefully detailing the Claimant’s period of service. This application was submitted in January 2015 and was outside the 6 months but within the 12 months post termination.
There is no doubt that an intention to make some sort of claim under the Unfair Dismissals legislation was formed within the six months of the termination of the employment and that notice of the intention was made known to the Respondent (who may or may not have opted to keep quiet about the clear mistake) and in these circumstances, it may well be that the Respondent will not be able to show any particular prejudice arising from an extension of time – as they’ve been on notice of a the claim for some time. However, these are not in fact considerations which the Tribunal must take into account in extending time. The Tribunal is only required to be shown that exceptional circumstances existed such that prevented the giving of notice within the first six months after the termination.
It is clear that this piece of 1993 legislation could not have been constructed in such a way as to anticipate that a Government inspired initiative some twenty years later would in fact be so faulty as to silently mislead people away from their intended destination. On balance the Tribunal therefore finds that there were indeed exceptional circumstances which existed (in the design of the e-complaint form) which prevented the Claimant’s Solicitor (and not in the sense of physically restraining but in the sense of not in any way revealing relevant information) from knowing that the complaint form she was submitting had diverted her away from the protections afforded and intended to be afforded to her client to the far less satisfactory route of Industrial Relations dispute.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)