ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008070
Parties:
| Complainant | Respondent |
Anonymised Parties | A worker | A public body |
Complaint:
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-00010724-001 | 10/04/2017 |
Date of Adjudication Hearing: 10/10/2018
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 10th April 2017, the complainant submitted a complaint of unfair dismissal. This was scheduled for hearing and adjourned on medical grounds. The Workplace Relations Commission subsequently scheduled the hearing for the 10th October 2018.
On the 25th July 2018, the Workplace Relations Commission wrote to the complainant in the following terms: “I note from the file that the previous hearing did not proceed as you were unwell. Please note that the Commission intends to re-list your complaint for hearing, most likely early/mid-September. You should receive written notification of the hearing arrangements shortly. Should you require to have the matter deferred further then you will need to provide appropriate medical evidence of your unavailability and an indication of the timeframe involved.” On the 11th September 2018, the Workplace Relations Commission sent notice to the complainant of the time, date and venue of the adjudication.
The complainant sought an adjournment on the 26th September 2018 because of a forthcoming medical assessment and an ongoing investigation by the Data Protection Commission. This was declined. The complainant repeated the adjournment request at the outset of the adjudication hearing. I declined to adjourn the matter as the complainant had not presented medical evidence, as requested in the letter of the 25th July 2018. The fact of a data protection investigation does not prevent this adjudication from proceeding, in particular from considering whether the Workplace Relations Commission has jurisdiction to decide the complaint of unfair dismissal. I proceeded with the adjudication for these reasons.
On the 23rd October 2018, the complainant submitted a medical document from a psychiatrist. This does not say that the complainant could not attend a hearing of his complaint.
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant commenced working for the respondent on the 29th June 1981. There is dispute whether his employment has ended and the date of any dismissal. The respondent denies the claim of unfair dismissal and raises preliminary matters. |
Summary of Complainant’s Case:
The complainant opened his case by asking for an adjournment. He said that he was pursuing a complaint via the Data Protection Commission relating to false medical information retained by the respondent on his file. He also referred to medical grounds and he was to attend a new doctor in the coming weeks. He acknowledged receiving the letter from the Workplace Relations Commission of the 25th July 2018 and said he had requested an adjournment.
In respect of the date of his dismissal, the complainant stated that his P45 gave this as the 21st May 2016. He submitted that the respondent’s letter of the 8th December 2016 was the last infringement and within the time period.
The complainant outlined that he had a prima facie case to show that the respondent failed to implement the agreement. They broke the agreement and the issue of the P45 was contrary to statute. The complainant stated that the settlement did not prevent him from pursuing this complaint. This was an agreement which the respondent failed to implement, and it is therefore invalid under statute law. He said that the mediation was one-sided, and he was threatened with dismissal.
The complainant said he believed that he still had a contract of employment as he had not surrendered his contract. The issue of the P45 does not automatically mean that the employment has come to an end, relying on information posted online by an employment solicitor. He said that he had post-traumatic stress disorder and had symptoms arising from the workplace, perhaps from an armed robbery or bullying.
The complainant stated that his best year of earnings was over €70,000 per year. He outlined that a grievance he lodged was not adequately investigated as they spoke to everyone else but just took his statement. This was not fair and not in accordance with his constitutional rights. There is a prime facie case to look at the procedure. He needed to go through all the documentation to enjoy his constitutional and European rights. |
Summary of Respondent’s Case:
The respondent submitted that the date of dismissal was the 21st May 2016 and the claim is out of time. The P45 was re-issued in December 2016. The complainant was not unfairly dismissed, and he agreed a full and final settlement to terminate his employment. This followed an interim June agreement to allow a cooling off period for the complainant to get professional advice. The P45 issued in May 2016 to give the complainant an extra year’s tax credits, i.e. be more tax efficient. There was full compliance with the settlement agreement. The respondent submitted that the settlement amount was more than five times his annual salary.
The settlement was referred to the Revenue Commissioners, who decided how the monies should be treated. The respondent supported the complainant’s submissions and it was Revenue who determined the appropriate tax treatment. Revenue decided it was a termination payment and this was upheld on appeal.
The last day the complainant worked was in 2012 and was issued with a P45 in 2016. There was a Rights Commissioner recommendation in 2015 and by agreement his employment terminated in 2016. The cheque remains in escrow. The respondent submitted that the WRC cannot go behind the agreement. It submitted that the complainant had not submitted medical evidence to ground the adjournment. |
Findings and conclusions:
The complainant commenced employment on the 29th June 1981 and worked in an emergency service associated with a particular public infrastructure. He refers to longstanding issues, including being a victim of an armed robbery and bullying at work. He has not attended the workplace since 2012 and has been off payroll since 2013. His complaint form refers to the 21st May 2016 as dates of dismissal. The complainant suggested at the adjudication that he remained an employee. He also suggested that the respondent’s letter of the 8th December 2016 amounted to a contravention of the Unfair Dismissals Act and within time. The complaint was referred to the Workplace Relations Commission on the 10th April 2017.
In evidence, the complainant accepted that the most he earnt in any one year of employment was €70,000. On the 6th August 2015, the parties reached an agreement entitled “full & final settlement” where he was to be paid €270,000 gross. The respondent outlined that the mediation adjourned to allow the complainant obtain taxation advice. There followed discussion with Revenue and an appeal via the Taxes Consolidation Act. The respondent outlined that Revenue determined that the sum of €143,203.52 net was payable to the complainant. This settlement cheque was issued in June 2016 and the money remains in escrow.
The complainant refers in the complaint form to a date of dismissal of the 21st May 2016. The respondent submits that his employment ended arising from the full and final settlement. The P45 indicates that the date the employment ceased was the 21st May 2016. It follows that the 21st May 2016 is the date of dismissal for the purposes of assessing this complaint.
Section 7 provides what redress can be awarded pursuant to the Unfair Dismissals Act. Section 7(1) states“Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances.” The Unfair Dismissals Act does not provide for redress for things other than the dismissal. A breach, for example, of the notice provision in section 14 of the Act is not capable of an award of redress. The Unfair Dismissals Act only allows redress for a dismissal. The respondent’s letter of the 8th December 2016 cannot amount to a contravention that attracts an award of redress pursuant to section 7.
Section 8(2) 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.”
The complaint was referred 11 months after the date of dismissal. It is for the applicant for an extension of time to explain the delay and provide a justifiable excuse for the delay (see Cementation Skanska (formerly Kvaerner Cementation) v Carroll DWT0425). In assessing whether there is reasonable cause that prevented the referral of the complaint, I note the extensive correspondence between the parties on the implementation of the settlement. I note that the parties had previously attended a Rights Commissioner hearing, and this was under appeal to the Labour Court at the time of the settlement. The complainant’s referral to the Data Protection Commission did not prevent him from also making a complaint to the Workplace Relations Commission. In these circumstances, I find that the complainant has not showed reasonable cause required by section 8(2)(b) of the Unfair Dismissals Act and I do not, therefore, have jurisdiction to hear the complaint. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00010724-001 For the reasons set out in this decision, I find that the complainant has not showed reasonable cause required by section 8(2)(b) of the Unfair Dismissals Act and I do not, therefore, have jurisdiction to hear the complaint and I deem it not well-founded. |
Dated: 14th December 2018
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Unfair Dismissals Act Full & final settlement Limitation period |