UDD2027

1.An appeal of an Adjudication Officer's Decision No(s)ADJ-00011927 CA-00015596-001

BACKGROUND:

2.The Worker appealed the Adjudication Officer'sDecisionto the Labour Court on 8 August 2018 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing in a Virtual setting took place on 4 September 2020. The following is the Determination of the Court:-


DETERMINATION:

Determination

This is an appeal by Emma Fox (the Complainant) against an Adjudication Officer’s Decision ADJ-00011927 given under the Unfair Dismissals Acts 1977 to 2015 (the Acts) in a claim that she was unfairly constructively dismissed by her former employer, Cantec Office Solutions Ltd T/A Click (the Respondent). The Adjudication Officer dismissed the claim on the basis that her resignation was pre-emptory

The Respondent went into liquidation and the Liquidator did not attend the Labour Court hearing held on the 4^thSeptember 2020.

Background

The Complainant commenced employment on the 1st June 1998. She went on maternity leave in January 2017 and was due to return to work on the 31^stOctober 2017. Prior to her return date the Complainant was advised by the Respondent that her role had been transferred from Navan to Blanchardstown. This change of location did not suit the Complainant and she sought to discuss same with the Respondent. A meeting was held on the 24^thOctober and the Complainant attended with her representative. The Complainant’s concerns were not addressed to her satisfaction so the next day the 25^thOctober2017 her representative wrote to the Respondent advising that they were dissatisfied with how the meeting had gone and seeking a second meeting. The letter advised that unless a second meeting was held so that a resolution could be reached the Complainant would have no option but to take a constructive dismissal claim. This was followed up with a letter dated 2^ndNovember 2017 which states “I wish to inform you that my client Emma fox has requested that you be advised that she is resigning her position with the company as she has been left with no option.”The letter concluded by stating that it was their intention to lodge a complaint under the Unfair Dismissals Act.

By letter of the 7^thNovember 2017 the Respondent replied apologising for the delay in responding to letters of 25^thOctober and 2^ndof November 2017. In the letter a meeting was proposed for the 28^thNovember in the Respondent’s offices in Blanchardstown. The Complainant’s representative replied by letter dated 13^thNovember 2017 indicating their availability to meet on the suggested date but looking for an alternative venue nearer to where the Complainant lived. No reponse was received to that letter.

By letter dated 27^thNovember 2017 the Complainant’s representative advised the Respondent that the Complainant was “resigning forthwith”. The Complainant on the same date 27^thNovember 2017 wrote to the Respondent and advised as follows:”I have now made the decision to tender my resignation with immediate effect”.

The Complainant submitted a claim of Unfair dismissal which was received by the WRC on the 6^thNovember 2017. The reckonable period for the purpose of the Act is 7^thMay 2017 to the 6^thNovember 2017.

Preliminary issue

The Law

The Workplace Relations Act 2015 at section 6 states:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Discussion

It is clear from the documentation provided to the Court that while the Complainant indicated on the 2^ndNovember 2017 that she was going to resign she did not actually resign on that date. The correspondence that followed the letter of the 2^ndNovember indicates that she still considered herself to be an employee. In particular, her letter of the 27^thNovember 2017 submitted to the Respondent stating:”I have now made the decision to tender my resignation with immediate effect”clearly indicates that she was resigning with effect from that date. The Court does not believe that the words “with immediate effect” given their natural meaning could mean anything else. The legislation requires that a complaint be referred within a period of 6 months beginning on the date of the contravention. In this case the date of the alleged contravention is the 27^thNovember 2017, which is outside the reckonable period as set out above. As no contravention occurred within the reckonable period the complaint must fail.

Determination

The Court determines that the Complaint is not well founded. The Decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
DC	______________________
24 September 2020	Deputy Chairman