Complainant

Respondent

Anonymised Parties

A General Operative

A Meet Processing Company

Act

Complaint Reference No.

Date of Receipt

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

CA-00016766-001

11/Jan/2018

The complainant was employed by the respondent as a General Operative from 1 January 2005 until his employment ended following a finding of gross misconduct. The complainant claims that he was unfairly dismissed by his employer.

The respondent denied the complainant’s allegation of unfair dismissal and submitted that the complainant’s employment was terminated following a finding of gross misconduct against him after a full and fair investigation into the matter.

Jurisdictional Issue

The respondent’s legal representatives raised a preliminary issue in relation to the Adjudication Officer’s jurisdiction to inquire into the complaint. Without prejudice to its position on the substantive case, the respondent raised an objection to the Adjudication Officer’s jurisdiction to inquire into and decide this complaint on the basis that the complainant had not referred his complaint within the time limits prescribed by Section 8 of the Unfair Dismissals Acts. In support of its application, the respondent submitted the following:         

The complainant’s employment terminated on 3 July 2017 and the complaint was not received by the Workplace Relations Commission until 11 January 2018.

The complainant was in receipt of his P.45 which shows a termination date of 3 July 2017 and therefore was on full notice of the position.

The decision of his appeal of the dismissal does not amend or vary the date of termination of his employment.

There was no expressed contractual provision in relation to the date of termination. Accordingly, the complainant’s ‘date of dismissal’ for the purpose of the Unfair Dismissals Acts was 3 July 2017.

The respondent said that there was no application for an extension of the time limits due to ‘reasonable cause’ before me for consideration.

Accordingly, the complaint is outside the six-month time limit referred to in Section 8(2)(a) of the Unfair Dismissals Acts. 

Jurisdictional Issue

The complainant’s legal representative submitted that I should take note of the Judgement of the High Court in the case of UPC Communications Ireland -v- Employment Appeals Tribunal (Respondent) and Ann Marie Ryan (Notice Party), (2017) IEHC567 where it examined the issue of when an employee’s dismissal takes effect. It is the complainant’s claim that the decision to dismiss is the day that the appeal process concludes and the decision is confirmed to the employee. He claims that the claim is in time on the basis that the appeals process did not conclude until 1 November 2017.

As an alternative, the complainant’s legal representative said that as the complainant was summarily dismissed without prior notice and having had 12 and a half years’ service, he ought to have received a minimum notice period of 6 weeks within which to see out his employment, but he was afforded no such notice or offered no payment in lieu of notice. He claims that pursuant of section 1B(ii) of the Unfair Dismissals Act 1977 the date his job terminated was not 3 July 2017 but was in fact 14 August 2017 in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973 is taken into consideration.

The complainant does not dispute that the instant complaint was referred to the Workplace Relations Commission on 11 January 2018.  

Findings on Jurisdictional Issue

Section 1 of the Unfair Dismissals Acts, as amended, provides:

“date of dismissal” means— (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 [Acts 1973 to 2005], 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 [Acts 1973 to 2005], 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 [Acts 1973 to 2005].

(c) where a contract of employment for a fixed term expires without its being renewed under the same contract or, in the case of a contract for a specific purpose (being a purpose of such a kind that duration of the contract was limited, but was, at the time of its making, incapable of precise ascertainment), there is a cesser of the purpose, the date of expiry or cesser;”

The complainant has suggested that the date of the dismissal should be considered in light of the decision in UPC Communications Ireland -v- EAT and Ann Marie Ryan, where the date of dismissal did not take effect until the appeal process had ended, or indeed, as an alternative to that argument that, he was entitled to minimum notice period of six weeks within which to see out his employment. The complainant claims that by either case it would bring his complaint within the 6-month time limit. The respondent in response said that the decision in UPC Communications Ireland -v- EAT and Ann Marie Ryan does not apply here, as there was no expressed provision or delay in the disciplinary or appeal process and that the industrial norms applied and that is the day he was dismissed. The respondent said as the complainant was summarily dismissed he is not entitled to minimum notice period of six weeks within which to see out his employment. Accordingly, the case fails in both instances.

Conclusions

I note in Meenan, Employment Law (2014) Chapter 20 - Statutory Unfair Dismissal paragraphs 20-04 where it states “Where an employee is summarily dismissed and his or her appeal under the domestic appeal succeeds the employee is re-instated with retrospective effect. If the appeal fails, his or her dismissal takes effect from the original date when notice of immediate dismissal is given, in the absence of express contractual provisions to the contrary. If a former employee does not come within the scope of the Unfair Dismissals Acts, a claim for redress cannot be pursued. Accordingly, the substantive facts or the reason for dismissal cannot be determined by the adjudicating body, which may be the rights commissioner, the EAT, the Circuit Court or High Court. [my emphasis added]. As a footnote to this paragraph the author cites the decision in West Midlands Co-operative v Tipton [1986] ICR 192 (HL) to support that fundamental position.

I also note in paragraph 20 – 24A where the author referred to the main principles regarding times limits and references the decision by the High Court in Brady v Employment Appeals Tribunal [2015] ERL 1, where Mr Justice Barrett stated “… that a number of issues have to be considered, namely that “prescribed time periods are typically intended to thwart the tardy, not punish the prompt. The second, is the longstanding principle of equity, good since at least the time of Smith v Clay [1761] 3 Bro CC 639n, that “Equity aids the vigilant, not the indolent”.”

The fact of dismissal was not in dispute in this case. However, the actual date of dismissal was in dispute between the parties and the interpretation of this date in accordance with the relevant legislative provisions will determine whether or not the complaint was referred to the Director General of the Workplace Relations Commission within the time period provided for in Section 8(2)(a) of the Acts.

It is clear that the complainant was notified by the respondent that his employment would terminate by reason of gross misconduct as of 3 July 2017. I note that he appealed this decision which was subsequently heard and he was informed on 1 November 2017 that the decision to dismiss him was upheld. I note that the complaint was received in the Workplace Relations Commission on 11 January 2018. I do not have an application to extend the time limits for want of reasonable cause before me for consideration. Therefore, the only question I have to determine is the correct date of dismissal.

Should I find that the correct date of dismissal is 3 July 2017 then it is clear that the complaint was received outside of the 6-month time limit and therefore, I have no jurisdiction to hear the substantive matter. Should I find that the correct date of dismissal is 3 July 2017 plus 6 weeks, as the complainant claims, that he ought to have received a minimum period as per the section 1B(ii) of the Unfair Dismissal Act 1977 with regard to the Minimum Notice and Terms of Employment Act 1973, or, that in light of the decision in UPC Communications Ireland -v- EAT and Ann Marie Ryan, that the date of dismissal did not take effect until the appeal process had ended, namely 1 November 2017. Then, in either case, this would overcome the preliminary matter in relation to time limits in favour of the complainant and I can therefore proceed with the substantive matter.

In considered of Section 8(2) of the Unfair Dismissal Act 1977 (as amended) and noted that the claim for redress must be made within six months of the date of the relevant dismissal. Having looked at the definition of “date of dismissal” under Section 1 of the Acts and noted that it is the date on which proper notice, if given, under the Minimum Notice Acts would expire.

In relation to the first argument that the complainant is due to have received minimum notice of termination of his employment because of the time served, I note that the respondent has found a case of gross misconduct or an issue in relation to the “the conduct of the employee” as per Section 6(4)(b) of the Acts. In relation to the Minimum Notice and Terms of Employment Act, 1973, I note that Section 8 of the Act provides as follows – “Nothing in this Act shall prevent the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.” Accordingly, it is well settled by now, where there has been a finding of gross misconduct the respondent is entitled to terminate the complainant’s contract without notice. Therefore, I do not uphold the complainant’s argument in this part of the claim.

In relation to the appeal date extending the date of dismissal, I note the decision in Tom O’Neill v Bank of Ireland [1993] ELR 145 and Savage v J Sainsbury Limited [1980] IRLR 90 where a contractual term governed the interim period between initial notification of the dismissal to the employee and notification of the decision to appeal.

In the O’Neill case the respondent’s disciplinary procedure provided for an expressed specific internal appeal “pending which no disciplinary action will be taken” and a further external appeal. The EAT found that the dismissal became effective prior to the external appeal. In the Savage case, the employee’s contract of employment provided “Pending the decision of an appeal to a Director against dismissal, the employee will be suspended without pay, but if reinstated will receive full back pay for the period of suspension”. The English Court of Appeal construed the term to mean that the date of dismissal is the date the initial decision to dismiss is notified to the claimant and not the date he is notified the appeal failed.

The decision in Savage was approved by the House of Lords in West Midlands Co-Op Society Limited v Tipton [1986] IRLR 12, where Lord Bridge of Harwich agreed that in “the absence of an express contractual provision to the contrary” that “the effective date of dismissal is the date of the initial notification of dismissal to the employee”.

With regard to the complainant’s argument citing the recent decision in UPC Communications Ireland -v- EAT and Ann Marie Ryan, I note that that case specifically revolves around a particular set of circumstances, regarding explicit clauses in the statement of grounds, and “a lack of clarity and created ambiguity which resulted in the claimant’s belief that her dismissal was stayed pending the outcome of the appeal.” I am satisfied those factors are not present in the case here under consideration.

Therefore, I find that the date of dismissal is not the date the complainant was notified that the appeal was unsuccessful but the date of the initial notification of dismissal on 3 July 2017.

Section 41(6) to (8) of the Workplace Relations Act provide as follows: “(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

I appreciate that the delay was a short delay, however, as an Adjudicator, I am bound to work within the statutory time limits pertaining to Section 8(2) of the Unfair Dismissals Acts as amended by the Workplace Relations Act of 2015.

The complaint before me was lodged at 20.45 hrs on 11 January 2018. There was no dispute over this date. Accordingly, I find that the complainant’s claim was submitted outside the statutory time. 

I find that the complaint has not been referred to the Director General of the Workplace Relations Commission within the time limits provided for in Section 8(2) of the Unfair Dismissals Acts. Accordingly, I do not have jurisdiction to inquire into the complaint.  

Unfair Dismissals Acts – Section 8(2) -Time Limits – No Jurisdiction