Complainant

Respondent

Anonymised Parties

A Payroll Administrator

An Employer

Representatives

SIPTU

IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00010196-001

13/03/2017

The Complainant was employed as a payroll administrator from 21st October 2002 until 6th April 2016. The complaint relates to alleged unfair dismissal.

The complaint was heard at an adjudication hearing on 17th January 2019.   Additional submissions were received from the parties. The date of receipt of the last submission was 1st February 2019.

IBEC on behalf of the Respondent submits that the Complainant’s employment with the Respondent ceased on 6th April 2016 and that the herein complaint was received by the WRC on 29th March 2018. The Respondent submits that, in accordance with the time limits set out in the Workplace Relations Acts, 2015, the complaint is out of time.

The Respondent argues that even taking account of the fact that the appeal decision was not communicated to the Complainant until 10th August 2016, the six-month deadline expires on 11th February 2017. The Respondent submits that the first communication to the WRC, supplied by SIPTU, is dated 3rd March 2017. The Respondent argues that this is still outside the six-month time frame and therefore the claim is out of time.

The Respondent notes that the Workplace Relations Act provides that the 6 months limit can be extended due to “reasonable cause”. In that regard, the Respondent cited Cementation Skanska Ltd. V Tom Carroll DWT0338. The Respondent argues that the Complainant is a member of SIPTU and so she has had access to expert legal advice within the initial six-month time frame. The Respondent submits that in a letter to the WRC seeking an extension to the six-month time limit, SIPTU submits that “the outcome of [the] appeal was communicated on the 10th August confirming dismissal. Pursuant to this a complaint was submitted to the WRC through its online referral system”. However, the first correspondence on file (as provided to the Respondent by the WRC) is an email from SIPTU dated 3rd March 2017. The Respondent submits that this date is still outside the six-month time frame.

In support of its position the Respondent cited Sheehy v Most Reverend James Moriarty, Bus Eireann v SIPTU (PTD8/2004), Tyco Healthcare (Ire) Ltd v A Worker EET025/2002, Jozefina Kolarska v Ikea Ireland Ltd. UD2362/2011, Savage v J. Sainsbury Ltd. [1980] IRLR 109, Department of Finance v IMPACT EET042.

The Complainant submits that she was informed of the failure of her appeal by way of letter on 10th August 2016. Post hearing, the SIPTU official provided a SIPTU internal case referral indicating that the matter was referred to him on the 29th September 2016. SIPTU claims that SIPTU lodged the complaint in the following week within the statutory time limit. SIPTU submits that the complaint was submitted in time through the online referral system but is not in a position to explain why this was not noted by the WRC.  

SIPTU argues that the matter was submitted to the WRC by way of online referral. SIPTU, on behalf of the Complainant argues that at this time the WRC referral system provided a confirmation when a complaint was submitted. This appeared on screen in a pop-up format immediately post submission and confirmed that the complaint was successfully submitted (this differs from the current system whereby the submission is acknowledged by email). The Complainant’s representative noted that he was absent from work for an extended period returning in February 2017. SIPTU claims that, as no hearing date has been received within the expected time frame an enquiry was made. SIPTU submits that an email was sent to the WRC on 3rd March 2017 with the complaint form attached as a soft copy. On this form it indicated that it had already been submitted and this was pointed out in the email. SIPTU submits that receipt of this email was acknowledged, and 13th March 2017 was noted as the date of submission. The complaint form was sent back for completion of required information on 15th and 27th March 2017. This was responded to on 23rd and 29th March 2017.

SIPTU submits that the complaint was lodged through the online referral system within the proper time limit. The union further argues that this was acknowledged by the pop-up message which noted that same had been successfully submitted. SIPTU claims that there was a delay in the expected correspondence from the WRC and an enquiry was made subsequently on 3rd March 2017 attaching the complaint form, which SIPTU claims had already been submitted. SIPTU argues that only at this point the WRC accepted the complaint form even though it states at the end of the form that this complaint had been submitted prior to the date of the email on 3rd March 2017.

SIPTU further submits that there was no delay in the submission of the complaint form but a failure in the processing of the form through the online system. It is submitted that the complaint form was submitted within the jurisdictional time limits. However, in the alternative an application is made to extend the time limit for submission on the grounds that the submission of the complaint was “prevented due to reasonable cause”. SIPTU claims that where there is no acknowledgement of the submission of the complaint by the WRC through the online referral system and in light of the above submissions an extensions of time is sought within the meaning of the act.

SIPTU argues that this is grounded on the above submissions and exploration of the case law pointing to an objectively reasonable explanation as to the delay involved.

SIPTU cited Cementation Skanska Ltd. V Tom Carroll DWT0338, O’Dwyer v Sword Risk Services Ltd. DWT1410.

The first matter I must decide is if I have jurisdiction to hear this complaint.

In making my decision, I must take account of both the relevant legislation and the legal precedent in this area.

Section 1 of the Unfair Dismissals Acts, as amended, provides:

“date of 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 the Minimum Notice and Terms of Employment Acts 1973 to 2005, 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 the Minimum Notice and Terms of Employment Acts 1973 to 2005, 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 the Minimum Notice and Terms of Employment Acts 1973 to 2005.

(c) where a contract of employment for a fixed term expires without its being renewed under the same contract or, in the case of a contract for a specific purpose (being a purpose of such a kind that duration of the contract was limited, but was, at the time of its making, incapable of precise ascertainment), there is a cesser of the purpose, the date of expiry or cesser;”

I note in Meenan, “Employment Law” (2014) Chapter 20 – ‘Statutory Unfair Dismissal’ paragraphs 20-04 where it states “Where an employee is summarily dismissed and his or her appeal under the domestic appeal succeeds the employee is re-instated with retrospective effect. If the appeal fails, his or her dismissal takes effect from the original date when notice of immediate dismissal is given, in the absence of express contractual provisions to the contrary. If a former employee does not come within the scope of the Unfair Dismissals Acts, a claim for redress cannot be pursued. Accordingly, the substantive facts or the reason for dismissal cannot be determined by the adjudicating body, which may be the rights commissioner, the EAT, the Circuit Court or High Court.“

As a footnote to this paragraph the author cites the decision in West Midlands Co-operative v Tipton [1986] ICR 192 (HL) to support that fundamental position.

It is clear that the Complainant was notified by the Respondent that her employment would terminate as of 6th April 2016. I note that she appealed this decision and she was informed on 10th August 2016 that the decision to dismiss her was upheld.

I note the decision in Tom O’Neill v Bank of Ireland [1993] ELR 145 and Savage v J Sainsbury Limited [1980] IRLR 90 where a contractual term governed the interim period between initial notification of the dismissal to the employee and notification of the decision to appeal.

In the O’Neill case the respondent’s disciplinary procedure provided for an expressed specific internal appeal “pending which no disciplinary action will be taken” and a further external appeal. The EAT found that the dismissal became effective prior to the external appeal. In the Savage case, the employee’s contract of employment provided “Pending the decision of an appeal to a Director against dismissal, the employee will be suspended without pay, but if reinstated will receive full back pay for the period of suspension”. The English Court of Appeal construed the term to mean that the date of dismissal is the date the initial decision to dismiss is notified to the claimant and not the date he is notified the appeal failed.

The decision in Savage was approved by the House of Lords in West Midlands Co-Op Society Limited v Tipton [1986] IRLR 12, where Lord Bridge of Harwich agreed that in “the absence of an express contractual provision to the contrary” that “the effective date of dismissal is the date of the initial notification of dismissal to the employee”.

Therefore, I find that the date of dismissal is not the date the complainant was notified that the appeal was unsuccessful but the date of the initial notification of dismissal on 6th April 2016.

The time limits for submitting claims to the Workplace Relations Commission are set out in Section 41 of the Workplace Relations Act 2015 which provides that:

“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.”

Therefore, under Section 41(6) of the Workplace Relations Act 2015, the initiating complaint referral form must be submitted on 5th October 2016, at the latest.

SIPTU argued that the Complainant contacted the union in or around 29th September 2016 and the WRC complaint form was submitted the following week within the required time frame. SIPTU was not in a position to provide the exact date of the submission. It claimed that a pop-up message appeared on the screen to confirm the successful submission of the complaint. Subsequently, as no further communication was received from the WRC, SIPTU emailed the WRC on 3rd March 2017, some 5 months later inquiring about “...complaint previously submitted to the Workplace Relations Commission and when a likely date for hearing will be scheduled.”

The WRC replied on 15th March 2017 as follows: “I acknowledge receipt of the above complaint/ dispute which was received by the Commission on 13/03/2017.”

On 27th March 2017 the WRC again wrote to SIPTU informing that “It would appear from the information submitted by you that this complaint/dispute does not fall within the statutory timelines” and further advising “if you consider that your failure to present the complaint/dispute within the statutory timelines was due to reasonable cause, you may make a submission accordingly to the Workplace Relations Commission.”

SIPTU replied on 29th March 2017 stating that “…the complaint was submitted to the WRC through its online referral system. This submitted complaint was queried by email on the 3rd of March with the above complaint attached clearly indicating its already submitted status” and further “…this complaint was submitted through the online referral system but not received by the WRC which presumably could only have occurred by some failure of the automated system qualifies for an extension of time within the meaning of the above provision.”

The WRC has no records of any correspondence in respect of this complaint prior to SIPTU’s email of 3rd March 2017. The WRC ICT Unit conducted a review of on-online complaints received by the server in the period between 29th September 2016 and 5th October 2016. The report confirmed that no complaint was received for the parties in question within that period.

I note SIPTU’s assertion that a pop-up message appeared following the submission of the online form. However, the full text of the “pop-up” message in the WRC online referral system which would have appeared on the screen at the relevant period (September 2016 – March 2017) included the following:

“IMPORTANT NOTICE

If you do not receive an email notification or, where you have not provided a valid email address, a written acknowledgement, your complaint was NOT successfully received by the Workplace Relations Commission. Email notifications and written acknowledgements should issue within minutes and within 4/5 days respectively of successful submission.

If you do not receive the email notification or written acknowledgement, you should attempt to re-submit your complaint or contact the Workplace Relations Commission’s Information and Customer Services at 1890 80 80 90.”

The onus is on the Complainant or her representative to ensure that the complaint is properly submitted to the WRC. Neither the Complainant nor her representative received an email notification and/or written acknowledgement of the complaint allegedly submitted between 29th September and 5th October 2016. There was no contact made with the WRC in respect of same, as required. Therefore, on balance, I find that the complaint was not successfully submitted, and the WRC was not notified of such complaint until the email of 3rd March 2017 was received.

Taking all of the above into account, I find that the herein complaint has been lodged outside the time limits prescribed by Section 41(6) of the Workplace Relations Act 2015.

Section 41(8) of the Workplace Relations Act 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 as follows; 

“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 explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. 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.”

Therefore, in order to achieve an extension to the time limit the Complainant must be able to show that there are reasons which both explain the delay and afford an excuse for the delay.

The Complainant’s representative sought an extension of the time limit and argued that, as there was no acknowledgement of the submission of the complaint by the WRC through the online referral system, he believed that the complaint was submitted within the required time frame. He also noted that he was ill between December 2016 and February 2017 and followed up on the complaint on 3rd of March 2017.

I note that SIPTU would have had an extensive experience of dealing with the WRC and its complaint submission process. That aside, I find that the online system clearly outlines steps to be taken if no acknowledgement of complaint is received. I find that the matter was left unattended to for some 5 months before contact was made with the WRC.

Accordingly, I find that no reasonable cause was shown to empower me to extend the deadline for submission of a claim for redress under the Unfair Dismissal Act.

Taking all of the foregoing into consideration, I find that I have no jurisdiction to investigate this complaint.

Having carefully considered all evidence available to me, I find that the Complainant has failed to submit her complaint within the required time limit.

I find that I do not have the jurisdiction to hear this case.

Unfair dismissal - Time limit