Complainant

Respondent

Anonymised Parties

Complainant

Respondent Representative A;

Respondent Representative B

Representatives

Self

Rebecca De Groot Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 67(5) of the Property Services (Regulation) Act 2011

CA-00031401-001

07/10/2019

The complainant was employed by the respondent for seventeen years commencing on 16 September 2002 and ending with a letter of resignation dated September 25th, 2018-a date which is considered further in this decision.

The complaint submitted is concerned with issues which began in late 2017 at which time the complainant maintains that she reported wrongdoings under the Property Management Services Act to Respondent Representative B. From that time, she contends she experienced a series of events and actions by Respondents A and B which acted to her detriment and which ultimately led to the decision to resign from the employment after 17 years of employment. Her complaint is of penalisation for making a disclosure under the Property Management Services Act as amended by the Protected Disclosures Act,2014. The complaint is of penalisation.

The complainant laid out in detail a series of dates and events which she contended began to occur when Respondent Representative B became involved in the business in November 2017. It is the complainant’s case that in November 2017, she pointed out certain wrongdoings and concerns regarding the running of the business which the complainant maintained were business practices operated in breach of the Property Services Management Act. She maintained that she had reported these previously to Respondent A also and that he and Respondent Representative B took notes of the concerns she expressed. From November 2017 onwards, she experienced changes in the employment relationship she previously enjoyed with Respondent Representative A for many years. She found that her position within the business was changed, her terms and conditions were to be changed, although she contends that she did not receive a written statement until May 2018. There was questioning of her work including an investigation meeting; she claimed she was isolated; access to bank accounts was removed; her role was diminished; she became stressed and was out sick; she found she could not engage with Respondent Representative A; she lodged a grievance but was too unwell to pursue it while still in the employment; she had an issue with Bank Holiday Pay being paid to her while she was out sick on disability pay but her requests not to continue the payments were ignored ; she received correspondence that her continued employment was under threat due to her extended sick leave. On September 25, 2018 she wrote to Respondent A saying that she was resigning ‘on grounds that the issues I have raised with you in writing have not been addressed by you my employer.’

She stated that she continued in medical care for some time after her resignation which delayed her in submitting a complaint to the WRC.

All allegations against the Respondents were denied. Put simply, the case for the Respondents is summarised as follows: There was no disclosure of a wrongdoing by the complainant; audits by appropriate bodies have found no wrongdoing; the complainants difficulties stemmed from the introduction of Respondent Representative B into the employment and the role she began to play in the business thereafter combined with the resistance of the complainant to the introduction of written terms of employment from December 2017. There were performance issues with the complainant which led to an investigation meeting in April 2018. When the complainant raised a grievance, the Respondents responded in writing as requested by the complainant’s solicitor on April 24th2018. Despite all the correspondence over and back in 2018 that anything the complainant had said to either Respondent A or B was regarded by the Complainant as a disclosure under the Property Services Act as amended, was raised for the first time a year after she resigned from the employment. In the period January to September 2018, the complainant attended work only intermittently and was absent for long periods up to the point where she resigned. The Respondent questioned the length of time it had taken the complainant to submit a complaint to the WRC.

At the second hearing of this case the respondent raised the question of the length of time taken to bring a complaint to the Workplace Relations Commission. There was an element of uncertainty as to the exact dates involved. The complainant was not available for and did not attend work following her letter of resignation on September 25th, 2018. The date on which the WRC has recorded receipt of the complaint: Friday 04/10/2019.

Having considered the correspondence provided ,I find that while the letter of resignation of September 25th, 2018 gave a resignation date of October 24th, 2018,the fact that the complainant was unable to attend for work on grounds of ill health means in effect that she was giving no notice of working but merely of ending her employment relationship. Given she was not available to work, the period of statutory under the Minimum Notice and Terms of Employment Act i.e. one weeks’ notice is what applies in this case. It is not a matter for an employee to declare a period of notice which they cannot or will not fulfil and then to expect that period of unworked notice to be considered for the purposes of meeting an extended time limit within the legislation under which a complaint is brought to the WRC a year later. Allowing for one weeks’ notice of termination, the twelve months provided for under the Property Services Management Act expires on October 3rd, 2019. The date of receipt by the WRC was confirmed as October 4th, 2019 ,outside the limit of the scope of the legislation for bringing a complaint.

It can be argued that the respondent’s letter of October 4th brings the complainant within the scope of the extended period provided for under section 41(8) of the Workplace Relations Act,2015 which states:

‘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 this period referred to in subsection (6) or (7) 9 but not later than 6 months after the expiration after such expiration) 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. ‘

In their letter of October 4th, the respondent asked the complaint to reconsider her decision to resign, setting a time limit no later than October 11th for a response.

In her response the complainant stated: ‘I will be resigning from my position as the Property Manager…effective from the 24th October 2018 as previously stated on my original resignation letter dated 25/09/2018.’

For the avoidance of doubt, even if a date of resignation post October 4th, 2018, were applicable in this case, accepting that the complainant was ill for a period of time before and after her resignation, in considering a possible extension of the normal time limit of six months to a period at best close to the outer limit for bringing such a complaint, account is taken of the fact that while in her correspondence on September 25th 2018 the complainant refers to her integrity and ethics being questioned ,not the employers as she had previously inferred in earlier correspondence. In that previous correspondence while the complainant raised several issues of grievance with her employer, including in solicitors correspondence issued on her behalf in April and August 2018, at no stage prior to the making of a complaint to the WRC on October 4th 2019 was an issue raised by the complainant with her employer of a ‘whistle-blower’ complaint related to either the Property Services Management Act or the Protected Disclosures Act 2014. Her letter of resignation refers to issues she had ‘not being addressed in writing’ notwithstanding the fact that she had received a written response on 21 May 2015 which replied to her grievance. In the same letter of May 21st, she was asked to provide details of any concerns about the ethics of the running of the business but failed to do so. When she confirmed her intention to resign in a letter dated 11 October 2018, she confirmed her decision of September 25th adding no new information or reasons for her resignation. Reference to a complaint related to the legislation under which this complaint was made was first made almost twelve months after the resignation and well outside that period from when the complaints of penalisation are now said by the Complainant to have commenced following a disclosure as defined by the Property Services Regulations Act, going back to November 2017.

In the circumstances of this case, I find that reasonable grounds do not exist for extending the time limits by almost six further months even if the date of termination of employment is viewed as October 11th  or indeed October 24th, 2018. While not arriving at any conclusions regarding the substance of the complaint, either way, I consider that providing an extension of close to twelve months, even if the complaint were marginally within the extended time limit provided for under section 41(8), of the Act of 2015,would not be justified as reasonable.

While it is regrettable that this issue did not arise on the first day of hearing, the hearing on that day was not completed as the time allotted for the hearing was insufficient for what transpired to be a complex case involving many dates and a series of events which were contested on both sides.

Based on the evidence before me, I find that grounds do not exist for entertaining this complaint under section 41(6) or (8) of the Workplace Relations Act 2015.

Date of Termination in a resignation; extension of time limits