Complainant

Respondent

Anonymised Parties

Foreman

Structural Steel Contractor

Representatives

Self

A O’Malley Hughes Scott & Co sols

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-00023879-001

07/12/2018

The Complainant was employed by the Respondent on and off from 2009. He was in continuous employment subject to lay off or part time work described by him as Xs and Os from 2012 onwards. The claim is that he was unfairly dismissed on June 7th, 2018.

The Complainant had an accident outside of work in February 2018 and was out on sick leave. He was not offered any work after June 2018 and he received his P45. Asked if he had contacted the former employer at any time after he received his P45, he said no, that he felt this was part of a pattern where he was being pushed out of the employment over a period during which other employees who were younger and had less service were kept on although he had been employed as a foreman. He felt hard done by when he was not asked to come back after his injury and was let go.

The Complainant stated that he had obtained other work in July 2018 for three months and worked for some periods after that on and off.

The Respondent raised a preliminary issue of time limits for bringing the claim. It is the Respondent’s position that the Complainant resigned and was not dismissed. In April 2018,the Respondent sought his documentation to be sent on to another employer as that employer was going to take him on. His P45 was issued at the end of April and this was the date of termination of the employment. The Respondent acknowledged it was incorrectly dated February 2018, as this was the last date the Complainant worked for the Respondent before his accident, on completion of a job in Dublin. Having received his P45 in April, the Complainant did not submit his claim to the Workplace Relations Commission until 07/12/2018, claiming he was dismissed exactly six months previously, 07/06/2018. Acknowledging that an Adjudication Officer may entertain a complaint if he or she is satisfied that the failure to present the complaint within the statutory time was due to reasonable cause, no reasonable cause for the delay had been advanced by the Complainant. Regarding the Complainant’s assertion that he could have felt that he was being pushed out of the company, this was rejected by reference to a named director who was in touch with the Respondent several times on Facebook after his accident and these were all friendly exchanges. It was submitted that the Complainant rang two named managers and told them he was going to work for another employer. He asked for his documents and in an email on 30 April the documents were sent to the person whom the Complainant said he would be going working for. On May 3rd a message was sent to the Complainant confirming the documents had been sent to the other employer and asking if he had received them-there was no reply from the Complainant. A copy of the messages exchanged was provided at the hearing. This was the first time the Respondent had issued a P45 to another employer for the Complainant.

In relation to periods of lay off, the Respondent presented a schedule of payments to the Complainant in 2017 and 2018. These showed that he was in employment for each week preceding his accident to the end of the Dublin contract in February 2018 and that he had only few weeks of lay off in 2017.

The Complainant submitted complaints to the WRC under Section 8 of the Unfair Dismissals Act 1977 as amended, and Section 77 of the Employment Equality Act 1977. It was brought to my attention following the hearing of the complaint of unfair dismissal that, when closing the discriminatory dismissal complaint, the complaints of discrimination on grounds of disability and reasonable accommodation were also closed in error and not notified for the hearing on January 22nd 2020. As it happens the matter of his having complained on his complaint form that he was discriminated against on grounds of his disability was put to the Complainant at the hearing on January 22nd when he made his dismissal complaint at the hearing on grounds of being pushed out to make way for younger employees, and he declined to elaborate on the point. It is the employer’s contention that he never contacted them at all seeking employment or an accommodation. However, it is accepted that the complaints under the Equality Legislation were not heard under that legislation and the WRC will offer the Complainant the opportunity to have his complaints under the Employment Equality Act unrelated to his complaint of dismissal heard at a future date. This Decision addresses the complaint of unfair dismissal.

At the hearing, the Complainant stated that a solicitor on record had let him down and perhaps he should get representation who could deal with the Respondent submission. He referenced the possibility of having a union official represent him. The Complainant was advised that January 22nd was set for the date of the hearing and would be heard. He was also advised that if he was dissatisfied with the outcome of the hearing, he could appeal the decision.

On the issue raised by the Respondent, that of the time limit for making the complaint under section 8 (2)(a) of the 1977 Act was exceeded, all the evidence points to the Complainant receiving his P45 at the end of April/early May 2018. He did say that there were two P45s in an envelope, one for his son and that he was in a lot of pain at the time due to his injuries. This might provide a reasonable ground for ignoring the P45, but it does nothing to support his claim that his employment with the Respondent ended on June 7th, 2018 as submitted on the WRC complaint form. It does not explain why he had arranged for his employment details to be sent to another employer if he believed he still had an employment relationship with the Respondent. In this regard it is noteworthy that he never contacted the Respondent before submitting his complaint to the WRC, even out of curiosity, to establish if the Respondent had further work for him. And he did not query the issuing of his details to another employer following the receipt of the Facebook message of May 3rd, 2018 which informed him that the documents requested had been sent on to the other employer. His claim that he thought that this was another period of lay-off as had occurred previously, contradicts his claim that he was being pushed out of the employment. In other words, if he did not ask for work how could he know he was being pushed out as he has claimed. There is nothing in the facts of this case which supports the contention on the complaint form submitted to the WRC that he was dismissed on June 7th, 2018. The only significance of that date is that by claiming it as the date of dismissal it allows the receipt of the form by the WRC on December 7th to fall within or approximate to the six months’ time limit expressed in section 8(2) (a) of the Act. Having heard the Complainant on these points, I conclude that the claim that there was a dismissal and that the date of that dismissal was June 7th, 2018 are both spurious complaints. The Complainant went to work for another party when he had recovered from his injury and made a complaint against the Respondent only after that other employment ended and without any contact with the Respondent from May 3rd until he submitted a complaint form on December 2018. The conclusion is that there was no dismissal.

The substance of the complaint is addressed to leave no doubt that there is any question about the viability of the complaint but for an issue around the time limit and because the two issues are interconnected in respect of the events in April and May and not June, as claimed.

In relation to the time limit, and for the avoidance of doubt, it is found that the employment relationship between the parties ended on April 30th, 2018.

Section 8(2) of the Unfair Dismissals Act 1977-1 August 2016 is as follows:

‘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 F56[regulations under subsection (17) of Section 41 of the Act of 2015] to F57[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 the 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….

In concluding that the Complainant’s employment was terminated by him and no later than April 30th and that he was made aware of this fact no later than May 3rd, 2018 and that he failed to make a complaint within six months of either of these dates, I am not satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause, as required by sub section 8(2) (b) of the Act of 1977.

The complaint of unfair dismissal brought by the Complainant is not well founded.

Unfair Dismissal/Time limit under Section 8