Complainant

Respondent

Anonymised Parties

A caretaker

An education provider

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-00026200-001

11/02/2019

The complainant was dismissed on grounds of gross misconduct following a colleague’s allegation of sexual harassment. This arose following work drinks on the 16th February 2018. The respondent investigated the allegation and concluded that the behaviour constituted gross misconduct and warranted summary dismissal. The dismissal was upheld on appeal.

The respondent outlined that the complainant was summarily dismissed on the 30th May 2018. The letter refers to the “immediate effect” of the dismissal and to the complainant being “retrospectively reinstated” should his appeal succeed. The appeal outcome of the 14th November 2018 upheld the dismissal but found that the complainant should be paid notice pay.

The respondent submitted that, in UPC v Employment Appeals Tribunal, McDermott J. held that determining the date of dismissal was within the jurisdiction of the EAT and he, therefore, refused to quash the EAT’s finding in that case. The High Court authority does not mean that the date of dismissal is the date of the outcome of an appeal.

The respondent submitted that the limitation period for the claim should not be casually extended and there must be a justification for reasonable cause. The delay in completing the appeal was due to scheduling difficulties on both sides over the holidays. The appeal had been completed within six months of the 30th May 2018, so the complainant could have waited until the outcome of the appeal and then referred the complaint to the Workplace Relations Commission within time.

The complainant outlined that the respondent letter of the 30th May 2018 was ambiguous. On the 1st June, the complainant replied to indicate that he wished to appeal the decision to dismiss. He commented that the disciplinary appeal procedure is ambiguous, as it refers to a decision being final on appeal. The complainant advanced that if the date of dismissal was held as the 30th May 2018, there was reasonable cause for the late submission of the complaint. He attended the first appeal hearing on the 3rd July 2018 and there was a delay of 16 weeks to the second day of hearing on the 24th October 2018. This delay was attributable to the respondent, who had not furnished the relevant documentation to the person hearing the appeal. The complainant’s solicitor was out of the office because of ill-health in December 2018.

The respondent asserted that the date of dismissal was the 30th May 2018 (per the letter of this date), while the complainant submitted that it was the 14th November 2018 (the outcome of the appeal).

The Unfair Dismissals Act defines ‘dismissal’ as including “the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.”

The Act further provides that ‘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 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 the Minimum 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 the Minimum Notice and Terms of Employment Act, 1973…”

In Devaney v DNT Distribution Company Limited (UD 412/1993), the Employment Appeals Tribunal considered what amounted to a dismissal. It held “... where words are genuinely ambiguous what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question, what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention.”

The complainant relied on Ryan v UPC Communications Ireland Ltd (UD13/2013). Here the Employment Appeals Tribunal determined “The Terms of Employment were silent on the implications and effectiveness of the dismissal once issued and that when an appeal was lodged that this did not act a stay on such dismissal, then in that event, the Tribunal believes this led to a lack of clarity and in consequence created ambiguity which resulted in the Claimant believing that her dismissal was stayed pending the outcome of the appeal. The Tribunal support her view.” In a judicial review of the EAT decision [2017] IEHC 567, the High Court refused to quash this preliminary decision as it was one within the jurisdiction of the EAT. Desmond Ryan, BL in ‘Redmond on Dismissal Law’ 3rd edition [para 22.70] comments that the EAT decision in Ryan v UPC is “somewhat of an outlier authority distinguishable on its facts in light of the extremely lengthy delay on the part of the employer.” The delay in question stemmed from October 2011 to September 2012.

In respect of the instant case, the respondent’s letter of the 30th May 2018 states “I have considered the range of potential sanctions available to me and regrettably conclude that the most appropriate sanction is summary dismissal. On this basis, your employment will terminate with immediate effect… If you avail of the right of appeal and this decision is overturned, then you will be retrospectively reinstated to your role.” The appeal outcome of the 14th November 2018 upheld the decision to dismiss but held that the dismissal should have been with notice and not a summary dismissal. The complainant was, therefore, paid his notice entitlements.

The Appeals Procedure provides “In the case of stages 1 to 3 you can appeal against the warnings to a Director [of the respondent] within 7 days of receiving the warning. Your appeal will be heard by a Director [of the respondent] and or an agreed nominee as soon as is possible. The decision on appeal will be the final decision… You can appeal against dismissal by writing to a Director [of the respondent] within seven days of receiving written confirmation of the decision to dismiss you. A Director [of the respondent] will hear your appeal. The decision to dismiss will stand unless it is reversed on appeal.”

Whether an appeal operates as a stay on a dismissal is a matter of construction of the relevant procedures and the correspondence arising from the dismissal. There are circumstances where the procedures are explicit that the sanction does not take effect until the conclusion of the appeal (see Wallace v Irish Aviation Authority [2012] IEHC 178). There are circumstances where there is ambiguity whether the appeal operates as a stay on a dismissal (as was held by the EAT in Ryan v UPC). While it is rare for a dismissal to be stayed pending an appeal, this is a matter of construction of the relevant procedures and correspondence.

It is possible to argue that there is some ambiguity in the procedure. It refers to the appeal being “a final decision” albeit in relation to warnings. It further states that a decision to dismissal “will stand” unless reversed on appeal. Despite these possibilities, I find that the policy and contemporaneous correspondence were sufficiently clear that the date of dismissal was the 30th May 2018. The policy strongly suggests that an appeal can reverse a decision to dismiss, albeit that the decision to dismiss has been made. Considering Devaney, the letter of the 30th May 2018 could not be clearer that the complainant was being dismissed with immediate effect. I note that there is not the same delay in this case as arose in Ryan v UPC. I note that the complainant could have submitted the WRC complaint within the six-month limitation period on receiving the appeal outcome.

It follows that the complaint was lodged outside of the six months provided by the Unfair Dismissals Act. Section 8(2)(b) provides that an adjudication officer be“satisfied that the giving of the notice within the period referred to in paragraph (a) [submitting the complaint within six months] was prevented due to reasonable cause.” While I have sympathy for the circumstances set out in the evidence, they did not prevent the claim being lodged within the six-month period. I find that the complainant has not established reasonable cause.

CA-00026200-001

For the reasons set out above, I am not satisfied that the complainant has shown reasonable cause that prevented the complaint pursuant to the Unfair Dismissals Act being lodged within six months of the date of dismissal and I do not, therefore, have jurisdiction to hear the complaint. The complaint is not well founded.

Unfair Dismissals Act

Date of dismissal / stay pending an appeal

Ryan v UPC Communications Ireland Ltd (UD13/2013)

Devaney v DNT Distribution Company Limited (UD 412/1993)

Wallace v Irish Aviation Authority [2012] IEHC 178