FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : TESCO IRELAND LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - TANYA MC GARRY (REPRESENTED BY FRANK DRUMM B.L. INSTRUCTED BY HUDSON SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Hall |
1. Appeal of Adjudication Officer Decision No:ADJ-00008227 CA-00010919-002
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 27 April 2018 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 16 October 2018 . The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Ms Tanya McGarry against the decision of an Adjudication Officer under the Unfair Dismissals Act 1977 – 2015 (the Act) in a claim of unfair dismissal by her former employer, Tesco Ireland Limited. The Adjudication Officer found that the Complainant’s claim was not well-founded.
For ease of reference the parties are given the same designations as they had at first instance. Hence Ms Tanya McGarry will be referred to as “the Complainant” and Tesco Ireland Limited will be referred to as “the Respondent”.
Two further Adjudication Officer’s Decisions on appeal before the Court, (i) under the Terms of Employment (Information) Act, 1994 and (ii) under the Safety Health & Welfare at Work Act, 2005 were withdrawn by the Complainant’s legal Counsel at the hearing of this appeal on 16thOctober 2016.
Background
The Complainant commenced employment with the Respondent on 16thApril 2005. By letter dated 17thOctober 2016 she tendered her resignation.
In August 2011 the Complainant became a Deputy Store Manager Level 2 grade. On 27thOctober 2014 she became Express Operations Manager Level 2 grade. In September 2016 she was transferred to the position of Deputy Store Manager Level 2 grade in the Stillorgan Store.
The Complainant’s letter of resignation dated 17thOctober 2016 stated as follows: -
- “Please accept this letter as a formal notification that I am resigning from my position as Deputy Manager Stillorgan with Tesco Ireland. My last day of work will be the 4thNovember 2016”.
On 21stApril 2017 she referred a claim to the Workplace Relations Commission claiming constructive dismissal. In her submission to the Adjudication Officer she submitted that she was left with no alternative other than to resign from her position after she was transferred in her managerial role to a static position, having been in charge of a number of Tesco Express stores which required her to travel to the various stores.
The Adjudication Officer considered her constructive dismissal claim and found that her resignation did not meet the tests of constructive dismissal as she failed to exhaust any of the alternative avenues open to her before repudiating her contract of employment and accordingly found against her claim under the Act.
Preliminary Issue - Constructive Dismissal v Unfair Dismissal
Mr Frank Drumm, B.L. instructed by Hudson Solicitors, on behalf of the Complainant submitted that this matter, although initially presented to the Adjudication Officer at the Workplace Relations Commission as a constructive dismissal, was technically a dismissal.
In the written submission to the Court, the Complainant’s legal representatives submitted that the Respondent terminated the Complainant’s contract of employment a day earlier than the date cited in her letter of resignation, therefore they submitted that this was technically a dismissal within the meaning of the Acts as it was the Respondent who brought her employment to on end, sooner that the Complainant intended.
In response, in its written submission to the Court, the Respondent’s representative, Ms Ursula Sherlock, Ibec, denied that the Complainant’s employment terminated on 3rdNovember 2016. She informed the Court that the Respondent paid the Complainant up to an including the 4thNovember 2016, in accordance with her instructions in her letter of resignation.
As the Court was confused by this turn of events, prior to the hearing it sought clarity on the Complainant’s position, as it appeared to the Court that the nature of the claim had changed.
By email dated 15thOctober 2018, the Complainant’s legal representatives stated the following: -
- “The claimant’s claim, is by way of appeal of the decision of the WRC, dated 23rdMarch 2018.
- The case before you on the 16thOctober 2018, arises pursuant to the Unfair Dismissal Act 1977 on foot of the claimant’s dismissal; which arises on foot of the fact that the respondents dismissed the claimant; by way of termination of her employment after a period of 3 weeks from her letter of resignation: notwithstanding the fact that the claimant’s contract of employment; provided for a 4-week notice period. In effect the respondent terminated the claimant’s contract of employment, a day earlier that cited, in her letter of resignation. The claimant also submits that the factual circumstances, surrounding her letter of resignation, were not properly investigated (in circumstances whereby the claimant was under considerable stress, as was the case here), as set out, in the filed submissions and appendices.”
At the outset of the hearing, the Court addressed this matter with Mr Drumm and afforded him an opportunity to consider his position, what was the case on appeal? After a short recess Mr Drumm confirmed for the Court that the only claim before the Court was one of unfair dismissal of the Complainant by the Respondent. He was clear that the claim of constructive dismissal was not now being pursued.
Findings of the Court
The Court is clear that the appeal of the Adjudication Officer’s Decision before the Court related to a claim of constructive dismissal where the Adjudication Officer considered the burden of proof which resided with the Complainant in such cases and decided that the claim was not well founded. Contrary to what was asserted, a claim that the Respondent terminated the Complainant’s employment was not before the Adjudication Officer. Therefore, the Court is of the view that it did not have a properly constituted appeal before it and accordingly the case must be struck out for lack of jurisdiction.
Determination
The Complainant’s appeal fails. The Adjudication Officer’s Decision is upheld.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
MK______________________
19 OCTOBERDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.