ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00007606

Complaint:

ActComplaint Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00009930-001 03/02/2017   Date of Adjudication Hearing: 08/11/2017 Workplace Relations Commission Adjudication Officer: Enda Murphy

Procedure:

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.   It was confirmed by the parties in correspondence and at the oral hearing that the Complainant’s employer had changed its name on 4th January, 2016. On the Complaint Referral Form, which was submitted to the Workplace Relations Commission in relation to this matter on 3rd February, 2017, the Complainant named the respective entities that had employed him both prior to, and following, the aforesaid change of name. For administrative purposes, the WRC set up two separate complaint referrals in respect of this matter, namely Complaint Ref. No. CA-00009625-001 in the name of the entity that employed the Complainant prior to the change of name and Complaint Ref. No. CA-00009930-001 in the name of the entity that employed the Complainant subsequent to the change of name. For the purposes of my inquiry into this matter, I have decided to consider the complaint as a single referral against both of the aforementioned named entities. In the circumstances, the decision in this matter is being issued under Complaint Ref. No. CA-00009930-001 (and Complaint Ref. No. CA-00009625-001 has been deemed withdrawn for administrative purposes).   Having regard to the documentation submitted in relation to this complaint and the evidence and submissions of the parties, I am satisfied that the second named entity in this decision was the Complainant’s employer at the material time of the dismissal for the purposes of the present complaint. Accordingly, I am satisfied that this entity has been correctly named by the Complainant as the Respondent for the purposes of these proceedings.  

Background:

The Complainant was employed by the Respondent as a Sales Manager on 18th February, 2013. By letter dated 22nd December, 2015, the Complainant was advised that he was being issued with a formal notice that his role as Sales Manager would become redundant as and from 4th January, 2016. In addition, the Complainant was advised that he would not be required to work thereafter and would be placed on “Garden Leave” until the official date of dismissal for redundancy being the 4th January, 2016. The Complainant contends that a genuine redundancy situation did not exist within the Company and that his position and the duties discharged by him was not made redundant but rather that he was dismissed from his employment due to the level of salary commanded by him and that his dismissal was cost related. The Complainant contends that he was unfairly dismissed contrary to the provisions of Section 7 of the Unfair Dismissals Acts. The Respondent denied the Complainant’s allegation of unfair dismissal and submitted that the Complainant’s employment was terminated by reason of redundancy following a process of restructuring as a result of the company having sustained significant financial losses.

Summary of Respondent’s Case:

Jurisdictional Issue The Respondent’s legal representatives raised a preliminary issue in relation to the Adjudication Officer’s jurisdiction to inquire into the instant 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 was given formal notice in writing on 22nd December, 2015 that his employment would terminate by reason of redundancy on 4th January, 2016. The Complainant was paid in lieu of notice. Accordingly, the Complainant’s “date of dismissal” for the purpose of the Unfair Dismissals Acts was 4th January, 2016. ·         It was denied that the Complainant was entitled to receive one month’s notice under the terms of his contract of employment or that that the effective date of dismissal for the purpose of the instant complaint was 4th February, 2016. The Respondent submitted that even if one adds the statutory two weeks’ period of notice provided for under the Minimum Notice and Terms of Employment Act 1973 the date of dismissal can be no later than 18th January, 2016. ·         The instant proceedings were referred to the WRC on 3rd February, 2017 and accordingly, the complaint is outside both the six-month time limit referred to in Section 8(2)(a) and the twelve-month extended time limit period in Section 8(2)(b) of the Unfair Dismissals Acts. ·         The Respondent contends that the Complainant has failed to establish that he was prevented from referring the complaint with the six-month time limit due to reasonable cause, but even if there were such grounds to seek an extension of the six-month time period, it could not save the proceedings having regard to the fact that they were referred to the WRC more than twelve months after the date of dismissal.  

Summary of Complainant’s Case:

Jurisdictional Issue The Complainant, who was unrepresented, submitted that he received a letter from the Respondent dated 22nd December, 2015 advising that he would be made redundant from 4th January, 2016. The Complainant contends that he was entitled to one month’s notice under the terms of his contract of employment and that he received payment in lieu of this notice from 4th January, 2016. The Complainant contends that the effective date of dismissal having regard to the payment in lieu of notice was 4th February, 2016. The Complainant accepts that the instant complaint was referred to the WRC on 3rd February, 2017 and that this was outside the six-month time limit provided for in Section 8(2)(a) of the Unfair Dismissals Acts. However, the Complainant submitted that he was prevented from referring the complaint within the required period of six months due to reasonable cause and therefore, sought an extension to the time limit in accordance with the provisions of Section 8(2)(b) of the Acts. The Complainant submitted that he initially engaged a firm of solicitors in January, 2016 to pursue this complaint on his behalf. However, despite numerous phone calls, e-mails and meetings with the solicitor’s firm they never actually pursued the case through the WRC at the time and wouldn't even acknowledge his correspondence for reasons only known to themselves. The Complainant submitted that his solicitor was responsible for the failure to refer the instant complaint to the WRC within the required period of six months and he contends that this amounts to reasonable cause for the purpose of seeking an extension to the time limit.  

Findings and Conclusions:

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 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, Section 8(2) of the Unfair Dismissals 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”. The fact of dismissal was not in dispute in this case. However, the actual date of dismissal was very much 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 WRC within the extended twelve-month period provided for in Section 8(2)(b) of the Acts. It was common case that the Complainant was notified by the Respondent on 22nd December, 2015 that his employment would be terminated by reason of redundancy and that the official date of dismissal for reasons of redundancy would be 4th January, 2016. However, the Complainant contends that he was entitled to one month’s pay in lieu of notice under the terms of his contract of employment which he submits resulted in an effective date of dismissal of 4th February, 2016. Given that the instant complaint was received by the WRC on 3rd February, 2017, the Complainant therefore submits that it was referred within the period of twelve months from the date of dismissal. The Respondent disputes the Complainant’s contention that he was entitled to one month’s notice under the terms of his contract of employment and claims that he was only entitled to two weeks’ statutory notice in accordance with the obligations under the Minimum Notice and Terms of Employment Act 1973. The Respondent contends that two weeks’ notice was given to the Complainant on 22nd December, 2015 which expired on 4th January, 2016. Section 1 of the Unfair Dismissals Acts, as amended, provides, in effect, that the “date of dismissal” is the date on which notice, if given expired. This matter was previously considered by the Employment Appeals Tribunal in the case of Michael Gaboor -v- NYD Limited[1]. While the Gaboor case turned on a different point, namely whether an appeal against termination extended the notice period beyond that provided for under statute, it is correct to say that it reinforced the position that the effective date of dismissal is the expiry of the statutory notice period unless there is some contractual provision to the contrary. Having examined the documentation in relation to the contractual relationship between the parties which was submitted in support of their respective positions on this matter, I am satisfied that the Complainant was not entitled to a notice period of one month’s notice under the terms of his contract of employment. I find that the Complainant was entitled to the statutory period of two weeks’ notice in accordance with the provisions of Section 4 of the Minimum Notice and Terms of Employment Act 1973 having regard to his length of service with the Respondent company. I am satisfied that the Respondent issued formal notification to the Complainant on 22nd December, 2015 that his employment would terminate by reason of redundancy on 4th January, 2016 which equated to two weeks’ notice. In the circumstances, I find that the Complainant’s date of dismissal was 4th January, 2016 in accordance with the provisions of Section 1 of the Acts. As the instant complaint was referred to the Director General of the WRC on 3rd February, 2017 which is clearly outside of the extended period of twelve months as provided for in Section 8(2)(b) of the Acts, I find that I do not have jurisdiction to inquire into the complaint. Notwithstanding the foregoing, and in the event that I am found on appeal to have erred in my findings that the date of dismissal was 4th January, 2016, I will also address the issue of time limits in circumstances were it to be held that the Complainant was, in fact entitled to one month’s notice under the terms of his contract of employment. The Complainant has contended that the effective date of dismissal was one month from 4th January, 2016 and has submitted that his notice period expired on 4th February, 2016. In my view, the period of one month, if notice was given on 4th January, 2016, would have expired on 3rd February, 2016 (and not 4th February, 2016 as contended by the Complainant). However, in order for the Complainant to avail of the extension of time from six months to twelve months in accordance with the provisions of Section 8(2)(b) of the Acts, it must be established that the claim for redress was initiated within such period not exceeding twelve months from the date of the relevant dismissal. In circumstances where the date of dismissal was 3rd February, 2016, I am satisfied that the twelve-month period commencing on this date ends on 2nd February, 2017. Therefore, as the instant complaint was referred to the Director General of the WRC on 3rd February, 2017 it is also clearly outside of the extended period of twelve months as provided for in Section 8(2)(b) of the Acts.

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. I find that the complaint has not been referred to the Director General of the WRC 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.  

Dated:   07/02/2018

Workplace Relations Commission Adjudication Officer: Enda Murphy

Key Words:Unfair Dismissals Acts – Section 8(2) -Time Limits – No Jurisdiction   [1] UD2436/11