Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00013991-001

18/09/2017

The respondent is a network of retail coffee shops and the complainant started work there as a team leader on August 15th 2016. He was dismissed on August 3rd 2017, following a disciplinary investigation arising from a number of occasions of lateness. He was given one week’s notice and he was paid in lieu of notice. He appealed against the decision to dismiss him and an appeal hearing took place on August 16th. He received confirmation on August 21st to the effect that the decision to dismiss him was upheld.

The complainant argues that as the outcome of his appeal against his dismissal was issued on August 21st 2017, the termination of his employment is effective from this date. The respondent disputes this and argues that the complainant was dismissed by letter on August 3rd 2017, following a disciplinary meeting on July 31st. A preliminary issue therefore arises in respect of the complainant’s qualifying service under the Unfair Dismissals Act.

Complainant’s Position

Arguing that he completed one year of service, the complainant submitted that his service included the time taken for his appeal and his untaken holidays. He referred to the case of UPC Communications Limited (now Virgin Media Ireland Limited) v Employment Appeals Tribunal and Ann Marie Ryan[2017] IEHC 567 as appropriate to his circumstances.   UPC applied to the High Court for a review of the decision of the Employment Appeals Tribunal (EAT) in the claim of Ann Marie Ryan (UD 13/2013). I find that the facts of this case are not altogether similar to the complainant’s case. Ms Ryan had more than three years’ service with UPC when she was dismissed for gross misconduct on October 18th 2011. Two days later, her solicitors wrote to the company indicating that she wished to appeal against her dismissal and making a data access request, but the company claimed that it did not receive this letter. The solicitors wrote again in January 2012, but the appeal was not heard until September 6th 2012 and the outcome was communicated to Ms Ryan on September 18th 2012. This is the date relied upon by Ms Ryan in her application to the EAT as the date of her dismissal. If the date of October 18th 2011 was accepted as the date on which Ms Ryan was dismissed, then her complaint to the EAT was out of time, but not so if the date of dismissal was September 18th 2012.

Finding that Ms Ryan was entitled to proceed with her claim, the EAT concluded that her appeal should have been dealt with more expeditiously and that the failure to do so “lay at the feet of the respondent.” The chairman also found that Ms Ryan’s statement of the terms of her employment was “silent on the implications and effectiveness of the dismissal once issued and that when an appeal was lodged this did not act as a stay on such dismissal, then in that event, the Tribunal believes this led to lack of clarity and in consequence created ambiguity which resulted in the Claimant believing that her dismissal was stayed pending the outcome of the appeal. The Tribunal support her view.”

In the High Court, Mr Justice McDermott also supported this view and UPC’s application was refused.

Citing another EAT precedent, the complainant referred to the claim of Eunan Doyle against Conduit Enterprises Limited, UD 1200/2014. Like the previous case, this also turned on the time limit within which Mr Doyle submitted a complaint to the EAT. Mr Doyle also argued that the date of the outcome of the appeal was the effective date of dismissal. The Tribunal agreed with him, as his contract was considered to be ambiguous where it stated that “the outcome of the appeal is the Company’s final decision.” In light of this ambiguity, the Tribunal, by majority decision, decided in favour of the claimant.

Returning to the present case, the complainant’s position is that if I find that the date of his dismissal is not extended by the time taken for the respondent to conclude on his appeal, then it should be extended by the number of days of annual leave for which he was paid in lieu, although he did not specify the number of days to be considered.

Respondent’s Position

It was agreed that the complainant commenced employment on August 15th 2016. The respondent’s position is that he was dismissed on August 3rd 2017 and that he was entitled to one week’s notice, bringing his service to August 10th 2017. He did not work for the respondent after August 3rd and his P45 states that he was paid in lieu of notice and in lieu of holidays not taken up to the date of his dismissal. His P45 shows that he was paid up to August 10th 2017.

The complainant’s contract of employment was presented in evidence, which contains in full, the respondent’s disciplinary procedure. Under the heading of “Appeals,” there is a provision which states:

“At any stage after a disciplinary decision has been taken by the Company, including Dismissal, an employee has the right to appeal to the next level of management.

“To start an appeal, the employee must confirm their intention to appeal in writing within five working days of receiving the written notification, following the disciplinary action. The written confirmation should set out the grounds for the appeal. The Warning or Dismissal will stand unless and until it is altered on appeal.”

Having appealed against the decision to dismiss him, an appeal hearing was held on August 16th and the outcome was confirmed to the complainant on August 21st. The decision to dismiss the complainant was not altered.

The respondent’s position is that, as provided for in the complainant’s contract of employment, the appeal had no effect on the date of dismissal and his last day of employment was August 10th 2017.

In support of the respondent’s position, Ms Treacy referred to the EAT case of Tom O’Neill v Bank of Ireland, UD 425/91. Mr O’Neill’s case is also different to the case under consideration here as he had a number of years of service and the issue in dispute was whether he submitted his complaint to the EAT within six months of the date of his dismissal.   He argued that the effective date of his dismissal was the date when his appeal against his dismissal was not upheld. The EAT disagreed and determined that his complaint was not submitted in accordance with the time limit set out in the Unfair Dismissals Act. It is the respondent’s case that the outcome of this decision establishes a precedent for the treatment of the time taken to hear an appeal and that this time is not considered as “service.”

The Legal Framework

Section 2(1) of the Unfair Dismissals Act 1977 – 2015 provides that a dismissed employee making a complaint under this Act is required to have completed one year of service:

“Except insofar as any provision of this Act otherwise provides, this Act shall not apply in relation to any of the following persons:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him.”

Section 4 refers to the dismissal of apprentices in the period of six months following completion of their training and in not relevant to this complaint.

Continuous service is defined at in section 1 of the First Schedule of the Minimum Notice and Terms of Employment Act 1973:

“The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by—

(a) the dismissal of the employee by his employer, or

(b) the employee voluntarily leaving his employment.”

Section 1 of the Unfair Dismissals act sets out the “date of dismissal” as:

“(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973 , the date on which that notice expires.

(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973 , the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—  

(i) the earliest date that would be in compliance with the provisions of the contract of employment,  

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973.”

This complainant’s contract of employment stated that he was entitled to notice in accordance with the Minimum Notice and Terms of Employment Act 1973. As he had less than one year’s service, he was entitled to one week’s notice. He was dismissed on August 3rd 2017, and he was paid in lieu of one week’s notice, bringing his service to August 10th 2017, four days short of one year of service required by the Unfair Dismissals Act. He argues that some days of untaken holidays should be added to give him one year of service.

Findings

I have considered the case law submitted by both parties on the issue of the complainant’s service.   In UPC v Ryan and Doyle v Conduit Enterprises which were submitted by the complainant, the Tribunal found that there was ambiguity in the contracts of employment with regard to the effect of an appeal on the date of dismissal. There is no such ambiguity in the complainant’s contract, where it states that “The warning or dismissal will stand unless and until it is altered on appeal.” In both of the precedents cited by the complainant, the claimants had more than one year of service and the issue in dispute was about their right to extend the time for submitting a complaint to the EAT by the time taken for the outcome of an appeal to be issued. I find that the complainant’s case is not supported by the outcome of the Tribunals in the two cases submitted by him.

In the precedent case submitted by the respondent, O’Neill v Bank of Ireland, there are issues particular to Mr O’Neill which are not reflected in the case under consideration here. One significant difference is that Mr O’Neill inserted the date prior to his appeal as the date of dismissal his RP51A, the form then used to submit appeals to the EAT. He changed his mind on the date when his claim was found to have been submitted more than six months after he was dismissed. In any event, the Tribunal found that Mr O’Neill’s conduct justified dismissal without notice and he was found to have submitted his claim outside the time limit set down in section 8(2) of the Unfair Dismissals Act. The date of his dismissal was found to be the date he was dismissed before what was his final appeal to an independent person.

In the case under consideration here, the complainant was dismissed with notice at the conclusion of a disciplinary process. At the hearing, the complainant suggested that, in dismissing him on August 3rd 2010, following three incidents of lateness, the respondent was trying to avoid the scope of the Unfair Dismissals Act. The complainant received a final written warning on June 27th 2017, in respect of a separate matter. It is my view that, if they had been determined to dismiss him before he had completed a year of service, they might have considered dispensing with the disciplinary process, or, it could have been expedited, but they did not take this course. The respondent did not consider the fact that he was late for work on three occasions, one of which resulted in the shop being closed for an hour as gross misconduct, following which he might have been dismissed without notice.   Although it is not material to the outcome of my consideration of the preliminary issue, it seems to me that the respondent did not go out of their way to keep within the one-year window.

Conclusion

Based on the provision regarding appeals in the complainant’s contract of employment, I find that the date of his dismissal was August 3rd 2017, and not August 21st, which is the date on which he was informed that his dismissal was upheld. In respect of holidays, it is settled law that holidays not taken at the date of dismissal, cannot be added on as service. In this respect, I note the findings of the EAT in Maher v B&I Line, UD 271/1978 and Twomey v Office Supplies Limited, UD 864/1994.

I have decided concluded that the complainant has not established that he has one year of service required to bring a complaint under the Unfair Dismissals Act. On this basis, I have no jurisdiction to adjudicate on the substantive issue of his dismissal.

Length of service for the Unfair Dismissals Act 1977 - 2015