Complainant

Respondent

Anonymised Parties

The Wife of a now deceased Head of Product Manager

Investment Management Company

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-00028800-001

31/05/2019

The Complainant herein is the wife of a gentleman who came to work for the Respondent Irish company in and around July of 2017. The Employment relationship terminated in and around June of 2018 ostensibly as a result of a Redundancy situation. The gentleman has since died (and will henceforward be called the Deceased) and the Complainant is pursuing this claim as the Personal Representative acting for and on behalf of the Estate.

A workplace relations complaint form was not completed until the 31st of May 2019 some 11 months post the end of the employment. The Complaint Form was not completed by the Deceased but by his Personal representative (who is also his wife) in circumstances where the Deceased committed suicide some two months earlier in March of 2018.

I have been asked to consider a number of preliminary issues arising out of the unusual circumstances surrounding this case and I have dealt with these accordingly.

The Complainant is the widow of an Employee who was dismissed by reason of Redundancy. The Complainant says that the Dismissal was Unfair and brings the Complaint on behalf of the Deceased’s Estate. The Complainant was legally represented, and I was provided with two separate legal submissions together with legal Authorities and other documentary evidence. I heard from the Complainant as well as a Solicitor engaged by the Deceased at the time of the Redundancy.

The Respondent raised a number of preliminary issues going to jurisdiction. The Respondent rejects that this was anything other than a Genuine Redundancy situation. The Respondent was legally represented, and I was provided with two separate legal submissions together with Authorities and other relevant documents. I heard from the CEO of the Respondent company.

I have carefully considered the evidence adduced in the course of this case. This has included oral evidence as well as written evidence and supporting documents. The legal representatives have prepared and opened legal submission together with relevant authorities. Given the unusual circumstances, I have allowed the rules of evidence (hearsay and otherwise) to be stretched to breaking point and I appreciate the forbearance shown by the parties in exercising discretion as necessary.

I have heard all the evidence relating to this claim. It is understood that a number of preliminary issues must be dealt with before I can assess the substantive case under the Unfair Dismissals legislation.

The Role of the Personal Representative

In Section 1 of the Unfair Dismissals Act, 1977 an “employee” is defined as an

“…individual who has entered into….a contract of employment and in relation to redress for a dismissal under this case, includes in the case of the death of the employee concerned at any time following the dismissal, his personal representative.”

This establishes that where a claim for redress for dismissal under this Act exists, then it is possible for the Personal Representative to initiate or continue any such claim. The Civil Liability Act of 1961 confirms that all causes of Action which vested at the time of death shall survive for the benefit of the estate. It is not necessary therefore that the claim has been initiated. The claim may be initiated (as in this instance) after the death.

I am satisfied that this a fair and accurate synopsis of the law in this jurisdiction and that the Personal Representative (the Complainant) can maintain this claim after the death has occurred

For the purposes of this decision I am calling the Personal Representative by the title of Complainant with the Deceased Employee being referenced as the Deceased.

Locus Standii

A question has arisen as to whether I am entitled to hear this claim as the Complaint should more appropriately be brought before the equivalent employment relations institution in England. The Respondent proposition is that the Deceased for the duration of this employment (less than two years) worked outside of Ireland and was not ordinarily resident or domiciled in Ireland.

The facts are common case. The Deceased was employed by the wholly Irish owned Respondent Investment Company. The Respondent company was looking to expand into the lucrative London Market. The Deceased was seen as having extensive industry experience and expertise. The Respondent engaged the Employee in July of 2016 as it’s Head of Product Management with the express objective it was said in evidence of creating a “pipeline” of opportunity-seeking investors willing to engage the Respondent company. I note that the Contract of Employment at Appendix A cites a long list of responsibilities which only references the London angle in its final bullet point, though it is to be assumed that all the responsibilities specified would apply to both Ireland and the UK. There is a conflict on exactly how much time the Employee spent in London with the Respondent suggesting 62% and the Complainant stating 56%. The Deceased Employee continued to maintain his marital home in London, but also rented a fully equipped apartment in Dublin to allow for the commuting he was expected to do as part of his employment. The Respondent further asserts that the fact that the Deceased was paying tax in England and was primarily resident there operated to mitigate his entitlement to bring his claim before this jurisdiction.

Section 2(2) of the Unfair Dismissals Act of 1977 stipulates that the Act cannot apply to an employee working outside the state unless he or she was resident or domiciled in the state for the term of the Contract of Employment. However, Counsel for the Complainant has made the point that this provision has to be read now in light of the EU Regulation 1215/1212 of the European Parliament – commonly referred to as the Brussels Re-Cast - and which deals with jurisdiction issues and the recognition of enforcements of Judgements in Civil and Commercial matters.

In effect, this EU directive means that a Contract of Employment can operate so as to explicitly confer jurisdiction upon the Courts of Ireland for the purposes of any matter arising therefrom. The Employee only needs to habitually carry out work in the jurisdiction and the Employer business needs to be situate in the jurisdiction.

This is relevant in the context of the express assertion in the Contract of Employment (at Clause 29) between the parties herein which reads:

“These terms and conditions of employment will be construed and governed by the laws of Ireland and shall be subject to the exclusive jurisdiction of the Irish Courts”.

This issue arose in the case of Regional Claims Manager -v-   An Insurance Company (ADJ- 680 – 12th of April 2017) wherein the Adjudication Officer confirmed that

“Plainly the Recast Regulations take Precedence over the Section of the 1977 Act relied upon by the Respondent, as they were enacted (long)after the Section of the 1977 Act relied upon by the Respondent, and as European Regulations are binding on all member states, they take precedence over domestic law”

In that case it is noted that the Employee only worked in the Republic of Ireland some 3.8% of his time.

I am satisfied that the European Directive gives full effect to the Contractual intention of the parties herein and as set out in Clause 29 of the Contract of Employment. I am further satisfied that the fact that the Complainant was paid through sterling is not of itself detrimental to his entitlement to have the complaint heard in this jurisdiction and accept the findings in A Meat Factory Operative and A Meat Processor (ADJ 16246 19th of July 2019) in this regard. The mechanics of how an Employee is paid cannot, of itself, give rise to an implied rejection or acceptance of jurisdiction for the purpose of litigation. Employees are paid in many different ways and the manner and mechanisms of payment are chosen for many different reasons.

In the circumstances, I find I have jurisdiction to hear this matter.

Time Limit

This preliminary issue is the most contentious. As an Adjudication Officer I must be aware of applicable time limits and in this regard, the Workplace Relations Act specifies at Section 41 (6) that (subject to s.s.8) an Adjudication Officer shall not entertain a complaint referred to said Adjudication Officer after the expiration of the period of six months beginning on the date of the contravention to which the Complaint relates.

The facts on the dates herein cannot be in dispute. The Deceased commenced his employment on the 4th of July 2016. The Employment terminated at the expiration of a Contractual Notice period (spent on “Garden Leave”) on the 31st of August 2018. Pursuant to Section 41(6) the Deceased had six months to refer a complaint to the Adjudication Officer. Time started to run for the Deceased on the 31st of August 2018 which meant he had until the end of February to issue his Workplace Relations Complaint Form. He did not refer his complaint and regrettably he took his own life on the 17th of March 2019.

However, the Complainant herein acting for and on behalf of the Deceased’s Estate and acting as the Personal Representative did refer a Complaint as of the 31st of May 2019

Section 41 (8) specifies that an Adjudication Officer may entertain a Complaint or dispute to which this section (section 41) applies after the expiration of the six month period referred to in ss. (6) and (7) – though not later than a further six months after the initial expiration as the case may be - if the Adjudication Officer is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

So, the question herein is whether the Complainant who referred the complaint outside of the six months but within the twelve months can satisfy me that the failure to present the complaint within the first six months was due to reasonable cause?

What does reasonable cause mean?

The Labour Court, in Cementation Skanska v Tom Carroll DWT0338 28/10/2003, considered the issue of “reasonable cause” in the context of a similar provision to S.41(8) contained in the Organisation of Working Time Act, 1997 Section 27(5):

“Not withstanding subsection (4) a Rights Commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months of such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause”

The Labour Court stated:

“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 and excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not 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 Parties herein spent a considerable amount of time speaking to the mind-set of the Deceased during the six-month period after the termination of employment (and in the preceding three-month period of Notice). The Complainant Counsel argued that the Deceased was chronically depressed (though he was not being treated for same) and unable to contemplate filing in the online Complaint Form. I was provided with a medical report which described the symptoms of indecision, inability to confront and procrastination as being inherent in depression. As against that, I was also provided with evidence that the Deceased made some real efforts to obtain alternative employment in this time frame. The Respondent representative pointed out the contradiction in the premise being put forward. On the one hand that the Deceased was fit enough to seek alternative employment, but on the other hand he not strong enough to tackle the process of filing in the Workplace Relations Complaint Form. The Complainant brought an English Solicitor to the WRC (Mr. E) who confirmed that he had met with the Deceased on or about the 1st of June 2018 and had had up to 4 or 5 phone calls up until October 2018. Whilst Mr. E confirmed he was only competent and qualified to advise the Deceased in relation to what the Complainant’s entitlements might be in the UK he did confirm (based on the Contract of Employment and, in particular, clause 29 therein) that the Deceased should explore his rights in the Irish jurisdiction. This, to my mind, is patently obvious from the content of the letter of the 13th of June written to the Respondent. This letter dated the 13th of June is important as it provides a contemporaneous account of what the Deceased’s instructions were at the time of the termination of employment. Whilst I appreciate there might be a certain amount of Solicitor spin the content was not denied and in fact the letter of the 13th of June appeared to operate as a justification for placing the Deceased on Garden leave for the duration of the three-month notice period.

The parties have essentially argued that the Complainant must establish that the Deceased’s failure to refer or present this complaint was due to a reasonable cause (to be established by the Deceased) which would satisfy the Labour Court’s criteria as set out in Cementation Skanska v Tom Carroll DWT0338 28/10/2003 above. However, having considered the combined wording of the Unfair Dismissals Act and the Civil Liability Act I find that it is surely for the Complainant to demonstrate why she did not refer this complaint until after the expiration of the six months. It seems to me that the cause of action herein only vested in the Complainant (as Personal Representative) on the death of her Husband. She did not have the capacity or legal entitlement to trigger this claim before that date of death of her Husband. It is worth noting that Section 41 of the Workplace Relations Act 2015 is silent on who presents or refers the complaint. I am already satisfied that the Complainant as personal representative is entitled to present this Complaint but am bound to acknowledge that she could only do so at a certain point in time – namely the regrettable death of the Husband.

I accept that this point was not specifically put to me in the course of our legal discourse. However, on reflection it seems to me that the Complainant’s failure to present this complaint (trigger the cause of action) within the six-month period provided by Statute was by reason of that entitlement vesting in the Deceased for that period. He did not issue proceedings and the reasons for this remain unknown. What is clear is that the Complainant was a non-party during that period. It was not her claim to initiate. The Complainant by law could only initiate this cause of action after the death of her Husband – which she did. I am satisfied that the Complainant’s delay was due to fact that she was not entitled to bring this claim on behalf of the Estate before the tragic circumstances that occurred on the 17th of March 2018. Accordingly and this failure to present was due to that fact and/or cause.

Having heard the Complainant I am in no doubt that had the cause of action vested in her within the initial six-month period (i.e had her Husband passed away sooner) she would have presented the complaint. I am therefore satisfied that the Complainant herein is entitled to maintain the within complaint and is not excluded by reason of the time limitations set out in the Workplace Relations legislation.

As set out in Lidl Ireland Gmbh -v Moreria (DEA 1921, 17th of June 2019)

“It is clear that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly the Court must be satisfied as a matter of probability that the Complainant would have presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant there is some limitation on the range of issues which can be taken into account

The Claim for Unfair Dismissal

On behalf of the Estate the Complainant has made the case that the Deceased was Unfairly Dismissed, and that the Estate is therefore entitled to redress for financial loss attributable to the dismissal. I think it appropriate to note that the loss can only be attributable to that period of time from the 1st of September 2018 up to the 17th of March 2019. This is not a dependency claim as might be maintained in the Civil Courts.

The burden of proof rests with the Respondent to demonstrate that it has acted fairly and reasonably in the circumstances and to establish facts giving rise to the dismissal by reason of Redundancy. Per Section 7 of the Redundancy Payments Acts 1967 to 2007 the Employer can justify a dismissal by reason of redundancy where the dismissal is attributable wholly or mainly to the fact that the requirement for work of as particular kind has diminished and/or the Employer can carry on the business with fewer employees.

I heard extensive evidence from Mr. C the CEO and CIO of the Respondent company. On balance I accept his evidence that after a period of nearly two years the Strategy of trying to break into the London market was proving too difficult to sustain. Mr. C went to great lengths to state that this was not a reflection of the Deceased’s hard work and ability to connect but had more to do with the product he was promoting which simply could not gain traction in this highly competitive field and marketplace. At the end of two years with an investment of €500,00.00 already having been made, I recognise that the Respondent was entitled to implement a closure of the London office. Therefore contrary to the Complainant’s Counsel’s assertion this was a genuine Redundancy situation.

However, I do accept that it is difficult to reconcile Mr. C’s account of the ongoing dialogue between himself and the Deceased (at the various meetings) with the only corroborating evidence available - which amounts to the few Documents and letters generated in the run up to this Dismissal. Mr. C was comprehensively cross examined in this regard. On balance I have to find that there is no evidence to suggest that the Deceased was ever put on formal notice that his job was at risk, he was never advised that he was being called to a meeting that might result in his dismissal, that he was never offered alternative employment and was never allowed to make alternative proposals or in any other way justify his retention. The Deceased’s selection was not shown to be part of a selection process. Mr. C made the decision and I think as a founder and CEO of this company he believed that this was his decision to make.

The letter of the 1st of June 2018 identified as a Notice of Redundancy does not suggest cordial relations existed between the parties. The Deceased was simply told there was no alternative for him. It is also very important to note that the Complainant was not formally given a right of Appeal.

On the one hand I accept that a genuine Redundancy existed, but I also accept that there is an obligation on the Employer to demonstrate a fairness in reaching the decision of why a Redundancy situation exists and who should be selected for that Redundancy. It does not always follow that the individual with the largest salary should be made Redundant.

I am therefore making a finding that this was an Unfair Dismissal by reason of the woefully inadequate procedures applied in processing a selection for Redundancy. In assessing financial loss I must bear in mind that there was a Redundancy situation that would not have generated an Unfair Dismissal claim had the correct procedures been adopted. I have also noted that the Deceased was paid in Sterling but the award is in euro as appropriate to this jurisdiction.

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

CA-00028800-001 - I award the Complainant €41,000.00 compensation for the benefit of the Estate of the Deceased.