HSD191

The Adjudication Officer accepted the argument put forward by the Respondent that the WRC did not have jurisdiction to hear the claims or even to entertain an argument for ‘reasonable cause’ justifying an extension beyond six months from the date of the actions complained of, as the Claimant had failed to present his complaint within 12 months. In doing so, the Adjudicator made reference to s. 18,(h) of the Interpretation Act 2005 which states;

“where a period of time is expressed to begin on or be reckoned from a particular day that day should be deemed to be included in the period…”

As the Adjudicator found that the Claimant resigned his position on 1 March 2017, applying s.18(h), she found that the claim was filed one day in excess of the time period allowed.

The Claimant appealed the Adjudicator’s decision. The Respondent asked that the Court give consideration to the preliminary issue of time limits, in accordance with Rule 57 of the Labour Court (Employment Rights Enactments) Rules, 2016, which provide;

“ The Court may, at its discretion, give a preliminary ruling on any aspect of the case where it is satisfied that time and expense may be saved by the giving of such a ruling”

The Court acceded to this request and the parties were invited to make presentations to the Court on this matter. The parties were afforded the opportunity to make presentations on the issue of “reasonable cause” to justify an extension of time up to 12 months as if the Court was to accept that the claims were lodged within 12 months, as per the Claimant’s submissions, the issue of whether there was ‘reasonable cause’ to warrant an extension of time up to 12 months would still be required.

Claimant’s arguments

1 Section 1 of the Unfair Dismissals Act 1977 refers to ‘date of dismissal’ on the basis that employment ends on the expiry of the notice period or on the date when notice would have expired if it had been given. This encompasses ‘constructive dismissal’.

2 Section 6 of the Minimum Notice and Terms of Employment Act 1973 entitles an employer to not less than one week’s notice from employees in their employment for thirteen weeks. Thus, the date of dismissal is when the notice period expired i.e. 6 March 2017.

3 The Respondent recorded this correct date as the Claimant’s date of cessation on his P45 is recorded as 6 March 2017. On that date, the Human Resources Director wrote to the Claimant to say that she would ‘..instruct the HR team to notify the payroll department about your resignation, at this juncture….’

4 It is unreasonable of the Respondent to rely on the letter of 1 March 2017 as the date of resignation as the Claimant wrote to the Respondent on 8 February 2017, in the course of which he suggested ‘you may regard your target achieved and provide me with P45’. The Respondent did not regard this as a resignation and continued to engage with the Claimant, which illustrates the fact that the resignation became valid only upon acceptance by the Respondent.

5 In relation to the question of ‘reasonable cause’ to justify a time extension to 12 months, the Claimant’s representative referred to correspondence with the WRC dated 25 April 2018, in which they argued that the word ‘reasonable’ does not mean an especially high or onerous standard of causation and with which they enclosed medical evidence that the Claimant had suffered quite serious psychological issues up to 6 March 2018.

‘Bias’

The Claimant’s representative raised another issue as a preliminary issue and referred to the fact that prior to the adjudication, it had come to the Claimant’s attention that the Respondent’s Human Resources Director was a board member of the Workplace Relations Commission. This had been raised at the adjudication and it had been submitted there would be, to a reasonable person, a clear issuevis a visthe possibility of a fair and impartial hearing . Despite this being raised at adjudication, it was not referred to in the Adjudicator’s decision. Case law on ‘Objective Bias’ was quoted to the Court.

The Court advised that the issue before it was the question as to whether the claims made were within the required time limits. Court hearings are a ‘de novo’ presentation of arguments. So far as the preliminary issue of time limits is concerned, the Court has no direct links to the WRC, it has appellate jurisdiction in respect of decisions by the WRC, it hears such appeals on a ‘de novo’ basis and it would confine its consideration of the preliminary issue of time limits to the facts of this case, Suggestions of any alleged bias, perceived bias or potential bias, objective or otherwise, on the part of the WRC were irrelevant to the Court’s consideration of the preliminary matter of time limits referred to it for determination on a ‘de novo’ basis.

Respondent’s arguments

1 The Claimant issued his resignation on 1 March 2017. Applying the terms of the Interpretation Act 2005, (see above), 12 months from the date of the alleged dismissal is 28 February 2018. The Claimant waited until 1 March 2018, 12 months and one day, to submit his claim.

2 The Court does not have jurisdiction to hear a case that falls outside the timeframes of the Acts.

3 The Claimant’s resignation letter states;

“I do not wish to be your employee any more as I have had enough of the treatment afforded to me by the company’

It is clear that the Claimant exercised his right to terminate his employment as per s.8 of the Minimum Notice and Terms of Employment Act 1973 which states;

‘Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party’

4 Section 7 of this Act states;

‘’Nothing in this Act shall operate to prevent an employee or an employer from waiving his right to notice on any occasion or from accepting payment in lieu of notice’.

The employer, in this case, waived their right to notice and accepted the resignation.

5 A P45 is an administrative document and has no bearing on the date of dismissal.

6 Reference was made to anEmployee v. Employer UD/1228/2008andIarnr�d Eirean v. LynchUDD/1825where rulings were given on preliminary issues prior to determination of the substantive matters and toSheehy v. Most Rev. James Moriarity,in which the Employment Appeals Tribunal observed that it did not have authority to conduct a hearing where claims were not instituted within the time periods set out in legislation.

7 In relation to the issue of ‘reasonable cause’, the Claimant submitted that he suffered from depression until 6 March 2018 but yet he had submitted his claim on 1 March 2018 and no explanation had been given as to why, if he was fit to do so on 1 March 2018, he had not done so in time.

Determination

Any consideration of arguments on the question of ‘reasonable cause’ that would justify an extension of time limits arises only if the Court accepts the date of 6 March 2017 as the date of cessation of the Claimant’s employment.

In considering this question of the applicable cessation date, the Court had regard to similar cases on which the Employment Appeals Tribunal had ruled on this matter. In Employee v Employer UD501/2007, the Tribunal referred to Millett v. Shinkwin (2004) ELR 319, 328-9 in which the Labour Court observed;

‘A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract to an end’

And the Court said also;

‘The acceptance of the resignation by the employer is not required in order to determine the contract.’

Accordingly, the Tribunal went on to determine that the date of dismissal ‘if there was, in fact, a dismissal was the 2^ndOctober 2006, being the date upon which the Claimant submitted her resignation in unambiguous and unconditional terms’.

In the case of Stamp v. McGrath, UD 12432/1983, it was held also that, in a case of constructive dismissal, the relevant notice period should not be taken into account in determining the date of dismissal.

While the Tribunal went on to rule in Employee v Employer on the grounds on which a case for ‘reasonable cause’ to extend time limits might be based, this does not arise if the judgement of the Court is that any dismissal, if there was a dismissal, was 1 March 2017, the date on which the Claimant in these cases submitted his resignation. In accordance with the precedents quoted, the Court determines that 1 March 2017 was, indeed, the applicable cessation date. Accordingly, the Court does not have jurisdiction to hear the appeals and the decision of the Adjudication Officer is upheld.

Signed on behalf of the Labour Court



Tom Geraghty
CC______________________
7 February 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.