Complainant

Respondent

Anonymised Parties

A Flush Operator

A Medical Technology Company

Representatives

SIPTU

A&L Goodbody Solicitors

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-00019664-001

08/06/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 41 of the Workplace Relations Act, 2015

CA-00019664-002

08/06/2018

The complainant was employed by the respondent as a Flush Operator from January 1987 until his dismissal for gross misconduct on 1st September 2017. The complaints were submitted to the Workplace Relations Commission (WRC) on 8th June 2018 and relate to alleged Unfair Dismissal and an alleged breach of the Minimum Notice and Terms of Employment Act, 1973 in respect of notice entitlements.

The respondent contends that the complaints are out of time. The respondent stated that the time limits for the referral of complaints in accordance with the legislation is six months which can be extended to twelve months on application if reasonable cause can be shown for the delay in submitting the complaint.

The respondent stated that the complaint was submitted to the WRC nine months after the complainant’s dismissal. The respondent stated that the complainant’s assertion that the delay in submitting his complaint because of the absence of his Trade Union official does not satisfy the test of reasonable cause in relation to extending the time limit to twelve months. The respondent contends that the complaints are statute barred and should be dismissed.

The complainant argued that the complaint is within time. Although the complainant was dismissed for gross misconduct, this finding is disputed. The complainant’s representative submits that if the finding of gross conduct was found to be incorrect, the worker would have an entitlement to eight weeks’ notice from the date of the appeal decision.

The complainant’s representative outlined that the appeal decision on the complainant’s dismissal was conveyed to him on 25th October 2017. The complainant stated that based on his level of service with the employer, and in circumstances where he was not guilty of gross misconduct, he was entitled to eight weeks’ notice of the termination of his employment which would effectively bring the date of dismissal to 25th December 2017. The complainant cited the EAT case of Ann Marie Ryan v UPC Communications Ireland Limited (UD13/2013) in support of its position in this regard. The complainant argued that the complaint submitted on 8th June 2018 is within the statutory six -months period for the referral of complaints to the WRC.

The complainant further submits that if the Adjudication Officer does not accept the above position, an application to extend the time limit for the referral of the complaint to twelve months should be accepted on the basis that the complainant’s Trade Union official was absent on sick leave which prevented the referral of the complaint to the WRC within the prescribed timeframe. The complainant argued that this meets the test in relation to reasonable cause for the extension of the statutory time limits. The complainant cited the cases of Cementation Skanska and Tom Carroll DWT0338 and O’Dwyer v Swords Risk Services Ltd DWT1410 in support of its request to extend the time limit to twelve months.

In reaching my decision on the time limit issue for the referral of this complaint, I have considered both arguments submitted by the Trade Union; that the notional date of complainants dismissal was 25th December 2017 for the reasons stated and if that argument fails, that an extension of time be granted in relation to the referral date of the complaints.

The Applicable Law – Time Limits

Section 8(2) of the Unfair Dismissal Acts, 1977-2015 provides as follows:

(2) 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 in regulations 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,

and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General.

Dismissal without notice

Section 8 of the Minimum Notice and Terms of Employment Act, 1973 provides as follows:

8.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.

Date of Dismissal

The complainant was dismissed with effect from 1st September 2017 and the appeal decision on his dismissal was conveyed to him on 25th October 2017. The appeal was unsuccessful, and the date of dismissal was confirmed as 1st September 2017.

In Meenan on Employment Law 1st Edition, Round Hall Press, 2014 at para 20:04 it states as follows:

“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.”

While the complainant cited the case of Ann Marie Ryan v UPC Communications Ireland Limited UD13/2013 (hereafter “Ryan”) there was a significant difference in that case to the facts of the instant case. In Ryan there was an eleven-month delay in hearing the appeal of the dismissal which left the complainant in a period of uncertainty for a significant length of time whereas in the instant case the matter was concluded in a matter of weeks.

The relevance of Ryan in general terms is addressed in Redmond on Dismissal Law, 3rd Edition, Bloomsbury Professional, 2017 at para 22.71 which states that the decision in Ryan is:

“somewhat of an outlier authority distinguishable on its facts in light of the extremely lengthy delay on the part of the employer.”

It further notes that:

“outside of such extreme circumstances, the better view from the case law is that where the contract of employment contains no provision staying the date of termination of employment until the outcome of the internal process, the date of termination is the date on which the notice period expires on the basis of the original date of termination of employment prior to the internal appeal.

In the instant case, there was no evidence presented that there is a defined notice period in the complainant’s contract on employment and the circumstances of his dismissal were that he was summarily dismissed without notice for gross misconduct. Having reviewed the matter I am satisfied that the employer acted reasonably in deciding that the complainant’s behaviour met the definition of gross misconduct leading to his dismissal without notice.

In all of the circumstances of the complaint, I find that the date of the complainant’s termination of employment, following an unsuccessful appeal of his dismissal for gross misconduct was 1st September 2017.

Application to extend time

The complainant stated that the absence of his Trade Union official resulted in a delay in submitting the complaint within the statutory six-months’ time limit. The complainant stated that the application to extend time should be granted on the basis that reasonable cause has been shown in relation to the delay.

The respondent does not accept that the complainant’s request for an extension of time meets the test in showing that reasonable cause existed in relation to the late referral of the complaint. The respondent contends that the request be denied.

Reasonable cause

The test for establishing if reasonable cause exists for the purpose of granting an extension of time is that formulated in Labour Court Determination No: DWT0338 –Cementation Skanska and Carroll which states 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.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case”.

In the instant case the complainant argued that the absence of his Trade Union official satisfied the reasonable cause test as outlined inLabour Court Determination No: DWT0338 –Cementation Skanska and Carroll. I do not accept this contention. While the Trade Union official’s absence may well explain the delay in submitting the complaint, it does not, in my view, offer an excuse for the delay which was approximately thirteen weeks outside of the six months statutory time frame. Accordingly, I find that the complainant has not satisfied the reasonable cause test and therefore the request to extend time is denied.

Having considered the submissions of both parties and for the reasons stated, I find that the within complaints (CA-00019664-001 and CA-00019664-002) are out of time and are therefore statute barred.