ADJ-00020676

Complainant

Respondent

Anonymised Parties

Sales Assistant

Discount Stores Operator

Representatives

  Self

Ursula Sherlock,IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00026914-001

09/03/2019

The complainant commenced employment with the respondent as a sales assistant in one of their branches on 12 September 2016.  The complainant was employed on a part-time basis.  The complainant resigned from her position with the respondent with effect from 27 July 2018 and is claiming constructive dismissal.  The complaint is in relation to the events which led to the complainant tendering her resignation.   The complainant subsequently filed her complaint with the WRC on 9 March 2019.

The complainant’s initial experience in working for the respondent was positive and enjoyable.

Following the appointment of a new General Manager to the store the complainant’s working hours were reduced and she felt that favouritism was being shown to some members of staff.

In March 2018 an incident occurred at a staff meeting whereby the General Manager publicly divided staff into what were termed “committed” and “abusive” categories.  The complainant was one of 3 members of staff put in the “abusive” category.

 The complainant sought a reason for this categorisation and she was informed that it was due to her work performance and her absence record both of which the complainant considered to be unfair.

This incident led to the complainant going on sick leave and lodging a grievance.  Following a grievance hearing the complainant, who was still on sick leave, received an email stating that her complaint had been upheld and asking her to attend a welfare meeting.

The complainant felt that this was an inadequate response and on 20 July 2018 she handed in notice of her resignation.

The complainant resigned on 25 July 2018 more than six months before she lodged her complaint with the WRC.  The complaint is therefore outside the time limit allowed for filing a complaint under the Unfair Dismissals legislation.

The complainant worked a number of shifts after the incident at the staff meeting before going out on sick leave on 5 April 2018.  The reason given for her absence was “work-related stress”.

The complainant lodged her grievance on 6 June 2018 and a hearing conducted by a new General Manager took place on 22 June.  The complainant was informed of the outcome of her grievance on 29 June but could not be informed about the action taken in relation to the previous General Manager for data protection reasons.  

The complainant was requested on two occasions to attend welfare meetings as she remained on sick leave but instead submitted her letter of resignation dated 25 July 2018.

The complainant did not act reasonably in resigning her employment as she had not exhausted the internal procedures available to her.

Preliminary Issue:

The complainant lodged her complaint under the Unfair Dismissals Act, 1977, with the WRC on 9 March 2019.  On her claim form the complainant had stated the date her employment ended as 27 July 2018. 

Section 8(2) of the Act states:

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 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.

On 12 March 2019 the WRC secretariat advised the complainant of the effects of the above provision of the legislation.  The complainant filed a written submission as to the reasons which prevented her from presenting her complaint within the 6-month time limit.  At the hearing this issue was also the subject of further submissions from both parties.

In her submissions the complainant stated that the events leading up to and culminating in her resignation from employment had caused her to experience a great deal of stress, anxiety and depression which resulted in her claiming Illness Benefit.  The complainant had sought counselling in this regard and had participated in a specific counselling course from August 2018 until November 2018.  The complainant had also applied for a more general form of counselling and, after being on a waiting list for some months, had commenced same in November 2018.  This counselling was still ongoing. It was only when the complainant felt mentally and emotionally strong enough was she in a position to address the issues connected with her employment.  The complainant provided certification as regards attendance at both counselling programmes.

The Labour Court has addressed the issue of the application of the “reasonable cause” provision of the legislation in Cementation Skanska v Carroll (DWT0338).  In that case the Court stated:

It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay….. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon.  Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The facts before me are that the complainant submitted a letter of resignation dated 25 July 2018.  That letter addressed to the then General Manager stated:

Please accept this letter as notice of my resignation from my position as Store Assistant.

I want to give my sincere thanks for the experience and knowledge I have gained at (Company Name) since the beginning of my journey as an employee with the company.

As per my contract, I am providing (Company) with one week’s notice.  My resignation is effective from today and will conclude on 01/08/18.

The date of dismissal in similar circumstances has been considered by the courts.  In UD501/2007 the Employment Appeal Tribunal found that the date of dismissal was the “the date upon which the Claimant submitted her resignation in unambiguous and unconditional terms.”  In UDD197, Keelings Logistics Solutions Unlimited v Tamulynas, the Labour Court similarly found that the date of dismissal, if there was a dismissal, was the date on which the Claimant submitted his resignation.  In this case therefore the date of dismissal, if there was a dismissal, is 25 July 2018.

I note that the complainant was in receipt of Illness Benefit from 5 March 2018 until 2 August 2018 and that she commenced employment with another employer on 6 November 2018 and remained in that employment until taking up an education course in April 2019. 

The complainant’s position is that she was not mentally or emotionally in a position to lodge her complaint within the 6-month time frame.  The complainant did not present any medical evidence to that effect.  The complainant’s Illness Benefit ceased in August 2018 when presumably she was deemed fit for work and she took up employment in November 2018.  Taking all these matters into account I find that her mental and emotional conditions were not such as to prevent the complainant from lodging her complaint with the WRC and that consequently I do not have jurisdiction to hear this complaint.

Complaint No: CA-00026914-001:

For the reasons outlined above I find that the complainant has not complied with the provisions of Section 8(2) of the Act insofar as she is outside of the time limits contained therein and that, as a consequence, I do not have jurisdiction to hear this complaint.