FTD182

The Adjudication Officer issued his Decision on 13 January 2017. The Complainant appealed against that Decision on 22 February 2017. The case came on for hearing before the Court on17 April 2017, 31 October 2017 and 11 December 2017.

The Court on 31 October 2017 identified two preliminary points on which it sought submissions from both sides. Those submissions were received on 21 November 2017 from Mr Hanlon and on 5 December 2017 from the Respondent.

The hearing reconvened on 11 December 2017 to hear the parties on the issues set out in the notice of appeal.

Background

The Complainant worked for the respondent as a Clerical Officer on a fixed term contract of employment. The Respondent dismissed the Complainant on 6 March 2015. The dismissal was notified to the Complainant by email of that date which was sent to his personal email address. It states:-

"Dear Frank

Unfortunately, I have to advise you that following your probationary report, which it received from your manager, the decision has been made to terminate your service as a Temporary Clerical Officer in the Oireachtas service. Any outstanding payments including annual leave will be paid shortly. If you have any questions regarding these payments contact our salaries division.

A copy of your termination letter which issued to your home address is attached.

Regards

Ben"

The Complainant submits that this amounted to notice of intention to terminate his employment and not termination in itself. He submits that the letter sent in the normal course of post to his home address was the actual notice of dismissal. He submits that he did not receive that letter until the 8March 2015 and was therefore not notified of his dismissal until that date.

In the alternative, he submits that he could not open the attachment to the email he received on 6 March 2015. He submits that he did not do so until Sunday 7 March 2015 at which point he became aware of the decision to dismiss him with immediate effect. He submits that he accordingly was not on notice of his dismissal until that date.

In the alternative, he submits that he filed an appeal against that decision to dismiss him the outcome of which was notified to him on 16 April 2015. He submits that his dismissal did not become final until that date.

He lodged a Complaint to the Workplace Relations Commission on 6 September 2015. He submits that the Complaint was therefore filed under the Act within the statutory six-months of the date of the alleged contravention or the date of the termination of the contract of employment, whichever is the earlier, in accordance with s 14(3) of the Protection of Employees (Fixed-Term) Work Act 2003.

The Respondent submits that the Complainant’s employment terminated on 6 March2015 and that the Complainant submitted the Complaint outside the time limit set out in section 14(3) of the 2003 Act. It further submits that the Complainant has shown no grounds on which the Court could grant an extension of time for the bringing of the Complaint under the Act.

The Complainant made extensive legal submissions to the Court. In them he seeks to establish that he was not legally on notice of his dismissal on 5 March 2015.

He firstly seeks to argue that the email was sent to him after normal working hours and accordingly could not have been considered to have been delivered to him on that business day. He secondly seeks to argue that he could not open the attachment to the email on his phone and that he did not as a matter of fact, do so until two days later. He submits that this was the first formal notification he was aware of that his dismissal had taken effect. On that basis, he submits that his complaint was filed within the statutory six-month period.

Thirdly he argues that he had accrued an entitlement to notice of termination of his employment under the Minimum Notice and Terms of Employment Act 1973. He submits that this had the effect of extending his employment until the expiry of that notice. He submits on that basis that he filed his complaint in within the statutory six-month time limit.

Fourthly he argues that the email he received on 5 March 2015 was merely an advisory note referring to the actual notice of dismissal that had been sent by post that same day. He submits that he received that note in the ordinary course of post on 8 March 2015. Relying on that date he submits his complaint was filed within the statutory six-month time limit set out in the Act.

Finally, he submits that he was dismissed in breach of the terms of the Public Service Management Act 1997 and that the infringements of that Act render the decision to dismiss him void and of no effect.

The Respondent

The Respondent submits that the Complainant was dismissed with immediate effect on 5 March 2015. It submits that the decision to dismiss him was conveyed to him by email that day. It submits that the Complainant acknowledges receipt of that email on 5 March 2015. It submits that his decision not to read the attachment at that time does not alter the date on which he was notified of his dismissal as he had every opportunity to read it and for his own reasons chose not to do so. It submits that a failure to read the notification of dismissal until 8 March 2015 does not and cannot alter the fact of dismissal or of his having been notified of that dismissal with effect from that date. It submits that thereafter his is responsible for any delay in bringing proceedings under the Act.

The Law

Section 14(3) of the 2003 Act states:-

(3) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates or the date of termination of the contract of employment concerned, whichever is the earlier.

The Issue to be decided

The issue for the Court to decide in this case is whether the Complaint was filed within the six-months beginning on the date of the contravention to which the complaint relates or the date of termination of the contract of employment concerned, whichever is the earlier.

In this case the relevant date is the date on which the Complainant was dismissed from his employment.

In simple terms if the Court decides that the Complainant was dismissed on 5 March 2015 then the Complaint was presented to the commissioner after the expiration of the six-months beginning on that day. If it decides that the dismissal took place on any subsequent day, then the complaint was presented within the six-months beginning on the day of dismissal.

Findings of the Court

It is common case that the Respondent sent an email to the Complainant at 5:25pm on 5 March 2015 that contains an attachment that informs him that he is dismissed with immediate effect. The Court finds that the Complainant received that email. The Court accepts the Complainants evidence that he did not open that attachment until Sunday 8 March 2015.

However, the Court finds that that does not alter the date on which the Complainant received notification that his employment was terminated with immediate effect.

The Court finds that the Complainant accepts that he received the email and the attachment at 5:25pm on 5 March. That email states as follows:

“decision has been made to terminate your service as a Temporary Clerical Officer in the Oireachtas Service.” It goes on to state: “A copy of your termination letter which issued to your home address is attached.”

Based on the content of the email the Court finds that the Complainant was aware and on notice that his employment had been terminated.

The Court finds the Complainant’s decision to postpone opening the attachment to the email until 8 March does not avail him in this case. His delay was of his own making. He was in possession of the dismissal notice with effect from 5:25pm on 5 March 2015 and could not avoid its delivery and his constructive knowledge of its contents by delaying opening the attachment for two days. He alone must take the consequences for that delay.

The Court further finds no merit in the Complainant’s submission that he was entitled to at least one weeks’ notice and that the effective date of his dismissal was at the earliest 12 March 2015.

The Complainant relies on the definition of “date of dismissal” set out in the Unfair Dismissals Act. It states

“dateof 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 theMinimum 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 theMinimum 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 theMinimum Notice and Terms of Employment Act, 1973,

However, the definitions set out in section 2 of the Unfair Dismissal’s Act 1977 apply in “this act” and have no wider application unless otherwise specified in the relevant legislation. The Protection of Employees (Fixed Term Work) Act 2003 does not adopt that definition. This Court has no power to extend the 2003 Act to include such a definition and accordingly must hold that the dismissal date contended for by the Complainant has no basis in law and cannot be upheld by the Court.

Finally, the Court finds that it has no power to look behind the ostensible authority of the officials acting on behalf of the Houses of the Oireachtas Service and determine whether they acted in accordance with the Public Service Management Act 1997. This Court has no power to determine disputes regarding the application of that Act generally or in this case in particular.

Based on this reasoning the Court finds that the Complainant was dismissed from his employment on 5 March 2015. He presented his complaint to a rights commissioner outside the six-month statutory time limit provided for in section 14 (1) of the Act. The Court further finds that the Complainant offered no reasonable excuse for the delay in presenting his case to the rights commissioner. Accordingly, the Court finds that it may not entertain the complaint as it was not presented to a rights commissioner within the statutory time limit.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
CR______________________
26 February, 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.