ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00009155

Parties:

ComplainantRespondentAnonymised PartiesA Manager A Retail Outlet   Representatives  Solicitors,  IBEC Executive

Complaints:

ActComplaint Reference No. Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00010727-001 

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 CA-00010727-003

Date Of Receipt. 06/04/2017

Date of Adjudication Hearing: 05/02/2018

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 11 of the Minimum Notice and Terms of Employment Act, 1973 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.  

Background:

The Complainant , A store manager has claimed Unfair Dismissal and Minimum Notice . the Respondent has rejected the complaints and raised the Preliminary argument on time limits . In addition, Dismissal was disputed .

Summary of Complainant’s Case:

CA-00010727-001 The Complainant worked as a manager with the Respondent Retail outlet from January 2017. He was paid €1,057.69 gross per week for a range of hours between 48-60 hrs per week. The Complainant submitted two dates on his complaint form which referred to the date his employment ended: 1.23 September 2016 and 4 October, 2016 As part of the Preliminary Issue on time limits, Counsel for the Complainant submitted that the date of dismissal rested on October 4, 2016, the date on which he received a letter from his employer to that effect. He wished to be heard on his claim for Unfair Dismissal. He attributed his dismissal to having engaged in a legal process with his employer, which had concluded without witness statements or a Final Report. He submitted that he was not able to cross examine witnesses. The Complainant sought the remedy of compensation. He secured new work on 13 October within a less favourable differential in salary and he submitted details on loss. He received payment on October 21, 2017.

CA -00010727-002 The Complainant submitted that he was entitled to four weeks’ notice on the conclusion of his employment. He sought payment in lieu of notice.  

Summary of Respondent’s Case:

CA -00010727-001 The Respondent relied on written and oral submissions and disputed that a Dismissal had occurred. The Responded raised a preliminary argument on time limits and submitted that the Complaint was outside the statutory time limit. In referring to Charleton J judgement in the case of the Supreme Court case of   Adigun and the Equality Tribunal 2011/3 10JR, Appeal No 356/2011, The Respondent representative submitted that the Court had held that it is a pointless exercise to engage in a trial of fact over several days when whether the resolution of such facts may yield any redress to the claimant. The Respondent made further reference to 1`. Employee V Employer UD 969/2009, Preliminary matter decided. 2 Bus Eireann V SIPTU PTD 8/2004, where the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case “where it could lead to considerable savings in both time and expense” and where the point was “a question of pure law where no evidence was needed and where no further information was required “. The Respondent submitted that the claim was out of time, having been received on April 6, 2017, outside the six-month time limit. The Complainant was legally represented and through his Solicitor notified the Respondent of his intention to lodge a claim before the WRC in November, 2016. The Respondent outlined that the six-month time limit expired on 3 April, 2017. The Respondent was of the view that the complainant had resigned prior to that date as he had refused to engage with his employer despite numerous attempts. An Incident had occurred in the workplace on 21 March, 2016 after which, the complainant had not returned to work. Two external consultants were engaged to work with the complainant on grievance and Disciplinary issues. After this process, the complainant clearly communicated to one of the consultants that he had no intention of returning to work and this was accepted by the Respondent. The Complainant sought to resile from this position through his Legal Representatives, but the termination was confirmed.

CA-00010727-002 The Respondent submitted that the claim was outside the statutory time limit.  

Findings and Conclusions:

CA -00010727-001 Preliminary Issue: I have considered this claim for Unfair Dismissal. My jurisdiction is outlined in Section 8 of the Act. Section 8(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such (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 Generalto the employer concerned as soon as may be after the receipt of the notice by the Director General. This requires a claim to be initiated by giving a notice in writing within six months beginning on the date of the relevant dismissal. The WRC Procedures Document dated 2015 clarifies that the date on which a complaint is referred is the date it is received by the WRC. In this case, the complaint form was received on 6 April 2017 as indicated in a side bar record on each page of the document. It was signed by the complainant on 3 April, 2017, the day on which Counsel for the complainant indicated that it was submitted. The date of dismissal was detailed as 23 September, 2016. On May 31, 2017, the WRC acknowledged receipt of the complaint as 6 April, 2017 and informed the Complainants Solicitor that the claim had been presented after the expiration of the period of 6 months beginning on the date of the contravention. The Complainant was invited to make a submission on reasonable cause within 14 days. On June 13,2017, Solicitor for the Complainant submitted that the Complainant had been dismissed on 4 October, 2016 and as the form submitted on 3 April, 2017, was within the six-month period. Several postponements/adjournments happened in the case prior to the hearing of February 5, 2018. During this time, the Respondent filed a submission on preliminary arguments which was shared with the Complainants representatives on 18 December, 2017. The Complainant submitted that the claim had been made in time and should progress as such. In response to the Adjudicators inquiry on whether arguments on reasonable cause were being raised? Counsel for the complainant indicated that the 3 April complaint form satisfied the requirements of the Act. The Respondent re-affirmed that the dismissal was out of time and that the Adjudicator lacked the necessary jurisdiction to hear the case. In considering both submissions, I have established that the complaint was received for the purposes of the Legislation on 6 April 2017. I gave the parties time at the beginning of the hearing to afford the complainant an opportunity to respond to the Preliminary arguments. I also asked both parties for their substantive case, but both parties wished me to determine the Preliminary Issue. I am mindful of the Correspondence exchanged between the parties in November 2016. This clearly signalled an intention to place the matter before the WRC. I reviewed the unsuccessful appeal in Adigun submitted by the Respondent and would point to the variance between Equality Legislation and Unfair Dismissal legislation in that regard. There is scope in Employment Equality Legislation for a question to be investigated as a preliminary issue. I found it beneficial to incorporate Justice Charleton’s commentary in full just to emphasise this point.   While it is correct to argue that a unitary trial is the normal and most satisfactory method of proceeding with a case in court, there are also many circumstances where the trial of a preliminary issue may resolve the substance of a legal dispute. Even apart from the subsection quoted above, it is within the scope of fair procedures before any judicial or quasi-judicial body for an issue to be isolated and tried in advance of the main hearing provided that can be done fairly. Sometimes, the parties will consent to that. The advantage of the Employment Equality Acts is that the circumstances under which such a course may be taken by the Equality Tribunal are clearly spelt out. Central to any issue as to whether redress in respect of discrimination within employment is available under the Acts, is whether a person was employed or not. That issue was inescapably part of, and fundamental to, the admissibility of a claim for redress, which is defined in statute as being available only to employees. Hence, even apart from legislative provisions, it would make sense that once the issue was raised, it should be determined in advance of what was likely to be a substantial hearing. The resources of courts and tribunals are limited. It is a pointless exercise to engage in a trial of fact over several days when whether or not the resolution of such facts may yield any redress to the claimant looms is clearly the first hurdle that he or she must cross. That can be fairly isolated and tried in advance. There is nothing in the papers on this appeal to suggest that the Equality Officer misconstrued the relevant legislation or exercised the discretion which it gave him in any unreasonable or capricious manner.   I have found that the date of 6 April 2017 is outside the statutory time limits in respect of both quoted dates of termination of employment. In the absence of an argument on reasonable cause, I have found that I lack the jurisdiction to hear the case. The claim for Unfair Dismissal cannot succeed.   CA-00010727-002 Preliminary Issue Section 41(6) of the Workplace Relations Act, 2015 sets out my jurisdiction in relation to the claim for Minimum Notice Section 41. 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. Section 4 of the Minimum Notice and Terms of Employment Act 1973 sets out minimum periods of notice. Minimum period of notice. 4 4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section. (2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be— (a) if the employee has been in the continuous service of his employer for less than two years, one week, (b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks, (c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks, I have established in the earlier complaint that the complaint was received on 6 April 2017 at the WRC. I have found likewise in this claim. I have not heard an argument on reasonable cause. I must, therefore declare that the claim is out of   time and I lack the jurisdiction to hear the claim.  

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. 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 have found that I lack the jurisdiction to hear the claim. The claim is out of time. Section 11 of the Minimum Notice & Terms of Employment Act, 1973 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under the Act. I have found that I lack the jurisdiction to hear the claim. The claim is out of time.

 Dated:   14.02.2018

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Key Words: Unfair Dismissal, Minimum Notice.