FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : HEALTH SERVICE EXECUTIVE (REPRESENTED BY MAIRÉAD MCKENNA B.L., INSTRUCTED BY BYRNE WALLACE SOLICITORS) - AND - ITA LONG DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. A appeal of an Adjudication Officer's Decision No ADJ-00000739.
BACKGROUND:
2. The Respondent and the Complainant appealed the Decision of the Adjudication Officer to the Labour Court on the 6th and 9th January 2017 respectively in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on the 23rd May 2017. The following is the Court's Determination:
DETERMINATION:
This is a joint appeal against the Decision of an Adjudication Officer under the Unfair Dismissals Act 1977 – 2015 (the Acts) in a claim made by Ms. Ita Long against her former employer HSE where she alleged that she was unfairly dismissed. By decision dated 29 November 2016, the Adjudication Officer held that the complaint was not well founded.
For ease of reference the parties are given the same designation as they had at first instance. Hence Ms. Ita Long will be referred to as “the Complainant” and HSE will be referred to as “the Respondent”.
The Complainant referred her case to the Workplace Relations Commission on 26th November 2015.
Background
The Complainant was employed by the Respondent atOur Lady of Lourdes Hospital, Droghedaas a Social Care Worker from 17thApril 2001. By letter dated 26 February 2015 the Complainant was informed that she was dismissed from her employment following an investigation and disciplinary hearing under Stage 4 of the Respondent’s Disciplinary procedure. The Complainant alleged that she was unfairly dismissed contrary to the terms of Section 7 of the Acts. The Respondent denied the Complainant’s allegation and submitted that heremployment was terminated following a comprehensive process and investigation into allegations made against the Complainant.
Preliminary Issue
Ms Mairéad McKenna, B.L., instructed by Byrne Wallace Solicitors, on behalf of the Respondent raised a preliminary issue. Without prejudice to its position on the substantive case, Ms McKenna raised an objection to the Court’s jurisdiction to hear and determine this appeal on the basis that the Complainant had not lodged her complaint within the time limit prescribed by Section 8 of the Acts.
In support of her application, Ms McKenna submitted the following:-
- •TheComplainant's employment terminated on 26th February 2015. She did not institute the within proceedings until 26th November 2015. This is outside the six month time frame for claims for unfair dismissal to be submitted. The Complainant had not advanced any circumstances which entitle her to an extension of this time limit.
- •The statutory provisions required to be met in order to confer jurisdiction on the Court are mandatory, as held by O'Caoimh J inBank of Scotland (Ireland) v. Employment Appeals Tribunal and Prisca Grady [2002] IEHC119 dealt with an application for judicial review of the EAT brought by an employer alleging that the Tribunal exceeded its jurisdiction in proceeding to hear a claim lodged outside the 6 month statutory. O'Caoimh J in granting the relief sought stated:-
- "Before either the rights commissioner or the tribunal can deal with a claim for redress, a notice in writing of the claim must be given to them within six months of the date of the relevant dismissal and a copy of the notice must be given to the employer concerned within the same period viz. six months of the date of the relevant dismissal. It is of course the responsibility of the dismissed employee to ensure that these statutory requirements are complied with because if they are not, the rights
commissioner or the tribunal has no jurisdiction to hear and determine his claim. ….”
- "Before either the rights commissioner or the tribunal can deal with a claim for redress, a notice in writing of the claim must be given to them within six months of the date of the relevant dismissal and a copy of the notice must be given to the employer concerned within the same period viz. six months of the date of the relevant dismissal. It is of course the responsibility of the dismissed employee to ensure that these statutory requirements are complied with because if they are not, the rights
Summary of the Complainant’s Position on the Preliminary Issues Raised
The Complainant, who was unrepresented, stated that a process began on 1st December 2006which subsequently led to her suspension in July 2007 and eventually to her dismissal in May 2015. She said that her dismissal took effect on 28th May 2015 when she was taken off the pay roll. In response to the Respondent’s cited authorities, the Complainant submitted that in circumstances where she continued to be paid, it must be open to interpretation that her contract had been saved.
The Complainant stated that on 26th February 2015, she received notice of the Respondent’s decision to dismiss her. The letter stated that she would be removed from the payroll with effect from 30th January 2015, which it stated was her last day of service. However, this did not happen. In accordance with the Respondent’s Disciplinary Procedures she decided to appeal that decision. The result of that appeal was made known to her on 28th May 2015 when she was told that her appeal was unsuccessful. She then opted for an Ad Misericordium Appeal as provided for under the Respondent’s Disciplinary Procedure. On 15th July 2015 she received notice that her Ad Misericordium Appeal was unsuccessful.
The Complainant stated that as she remained on her salary until 28th May 2015 she understood this to mean that she had not yet been dismissed.
In response to the Respondent’s reliance on the case of a judicial review in the Bank of Scotland case,the Complainant referred toDenham J inde Roiste V Minister for Defence {2001]l1R 190where she held“time is more of the essence in Judicial Review proceedings than other proceedings and Order 84, Rule 21 refers to this”.
Findings of the Court on the Preliminary Issue
Section 8(2) of the Acts, as amended, provides:
- “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 subsection (17) of section 41 of the Act of 2015 to the Director General—
(a)within the period of 6 months beginning on the date of the relevant dismissal, or
(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,
and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General”.
Accordingly, the Court sought a submission on the applicable legal principles and relevant authorities from the Respondent in support of its objection before the Court. Ms McKenna provided substantial documentation to the Court.
In the course of these submissions, Counsel for the Respondent referred the Court to the Decision of the Employment Appeals Tribunal decision inAn Employee v An Employer(UD2436/2011). In this determination, the Tribunal held that where the contract of employment contains no provision stating the date of termination of employment until the outcome of the internal appeals process, the date of termination of employment is the date when the notice period expires on the basis of the original date of termination of employment pre the internal appeal. This she said was consistent with the earlier EAT decision ofO'Neill v Bank of Ireland[1993] E.L.R. 145 and the UK Court of Appeal inSavage v. Sainsbury Ltd[1980] I.R.L.R. 109. In the former the inclusion of a clause referring to no disciplinary action being taken pending the outcome of the appeal hearing resulted in the date of dismissal being the date of the outcome of the appeal. In the latter, the absence of a provision similar to that in O'Neill, meant the date of dismissal was the original date of termination and not the outcome of the appeal.
Counsel also referred toHowgate v. Fane Acoustics Limited[19811IRLR161 where the UK Employment Appeals Tribunal applied the decision in Savage v. J Sainsbury in unusual factual circumstances. It held:
- "It is implicit in every contract of employment that where a person appeals against a decision to dismiss him, the intervening period has to be treated as one of suspension and the ultimate decision of the appeal process relates back to the date on which the purported dismissal was effected. In such circumstances, in accordance with the Court of Appeal's decision in Savage v Sainsbury, if the man wins he goes back into employment; if he loses, he is deemed to have been dismissed on the original date. It is not necessary to have a specific term to this effect in the contract."
However, having reviewed the relevant authorities opened to the Court it seems clear that with the possible exception ofO’Neill v Bank of Ireland, none of the dismissed employees continued on the pay roll pending the outcome of the appeal. InO’Neillthe disciplinary procedures stated that no disciplinary action would be taken pending the appeal. He was told that his dismissal would take immediate effect unless he availed of the appeals procedure, which he duly did.
Application to the Instant Case
In the instant case, as the Complainant continued on the payroll during the internal appeal stage, the Court has examined the status of her employment during this period. The Respondent’s supplementary submission failed to address this point.
Section 1 of the Acts, as amended provides, in effect, that the ‘date of dismissal’ is the date on which notice, if given, expired. However, the question of when the notice expired is a question of fact. Counsel stated that the letter of dismissal dated 26th February 2015 clearly stated the Complainant was dismissed with pay in lieu of notice and that her dismissal took effect'as of 30th January 2015'.The letter stated that she would be removed from the payroll with effect from 30th January 2015, and that that was her last day of service.
The Court notes that the Respondent’s Disciplinary Procedures provides for an employee to appeal the decision to dismiss to a nominated Committee and in the event that that Committee confirm the original decision, the employee will then be removed from the payroll. This provision suggests that the Complainant was continued in her employment after the original decision to dismiss and was only terminated when the appeal confirmed the decision to dismiss. Therefore when exercising her right to appeal to the Committee, the Complainant had a legitimate expectation to continue on the same employment terms as she held prior to her dismissal.
In such circumstances, the Court is of the view while it was stated that she was paid in lieu of notice, it is reasonable to conclude that the initiation of the appeal had the effect of staying a notice period or extending it until the appeal was determined. Therefore the date on which notice expired would have been the date on which the appeal failed, i.e. 28thMay 2015.
Such a conclusion is supported by the fact that the Respondent continued to pay the Complainant’s salary during this period. It is not clear what Counsel meant in asserting that the payment of wages was a mere ‘benefit’ under the Respondent’s Disciplinary Procedure. The payment of wages is a benefit which flows from a contract of employment. The fact that the Respondent continued to pay wages, albeit without requiring the Complainant to work, seems a clear acknowledgement that the contract subsisted during the period in which the appeal was pending and the salary paid.
The Court is supported in that conclusion by the fact that the Respondent recorded the date of dismissal on the Complainant’s P45 as 28th May 2015 and in a letter to the Complainant dated 16th June 2015 outlining her last pay details and outstanding annual leave entitlements, states that she“ceased in our employment on the 28thMay”.
The Court accepts that the P45 can be taken as evidence indicating that the Respondent regarded the contract as continuing up to that date. Furthermore, having stated the date the Complainant ceased in employment as being 28th May 2015, the Court is of the view that it would be perverse to allow the Respondent to resile from that position for the purpose of defeating the Complainant’s right to advance her claim.
Determination on the Preliminary Issue
Accordingly, the Court finds that the Complainant had lodged her complaint within the time limit prescribed by Section 8 of the Acts.
Therefore the Court dismisses the Respondent’s preliminary objection and will proceed to hear the substantive case.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
16th June, 2017Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.