UDD2114

1.Appeal of Adjudication Officer Decision No. r-151595-ud-14.

BACKGROUND:

2.The Worker appealed the Adjudication Officer'sDecisionto the Labour Court on 30 June 2020 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing in a Virtual Courtroom took place on 27 January 2021. The following is the Determination of the Court:-

DETERMINATION:

Background

This is an appeal by Mr. Gillespie, ‘the Complainant’ of a Decision by an Adjudication Officer, ‘AO’, under the Unfair Dismissals Acts 1977 to 2015, ‘the Acts’. The AO’s Decision was that a complaint of unfair dismissal by the Complainant against Donegal Meat Processors, ‘the Respondent’, under the Acts was submitted outside of the six months’ limit from the date of dismissal, as prescribed by the Acts.

Further, no ‘exceptional circumstances’ were established in accordance with the provisions of the Acts, the AO did not have jurisdiction to consider the complaint.

The Complainant appealed to this Court.

The Court was required to consider the issue of the applicability of the prescribed time limits under the Acts, as a preliminary matter. The parties were advised that if the Court determined that it did not have jurisdiction to hear the appeal, a Determination would issue to that effect but if the Court determined that an appeal could be heard, a subsequent date would be arranged for the substantive hearing.

Summary of Complainant arguments on the preliminary issue

The Complainant’s complaint was submitted within the statutory six months’ limit. The Complainant was summarily dismissed on 29 April 2014. An appeal hearing was held on 23 May 2014 and the Complainant was advised on 3 June 2014 that the decision to dismiss was upheld.

A complaint was submitted to the Workplace Relations Commission on 7 November 2014.

The definition of the date of dismissal at s. 1(b) of the Acts states that, where prior notice is not given, the date on which such notice would have expired is the date of dismissal. In accordance with s.4 of the Minimum Notice and Terms of Employment Act 1973, in the case of the Complainant, he was entitled to two weeks’ notice, which means that his date of dismissal was 13 May 2014.

The Adjudication service received the complaint on 7 November 2014, which is within the six months’ time limit. If summary dismissal had not taken place or was not justified, the complaint would have been made in time. The only way to decide this, therefore, would be to hear the substantive case to determine if summary dismissal could be justified.

In the case ofSharon Barry v. Newbridge Silverware Ltd, UD1517/2012, the Employment Appeals Tribunal determined that the date of dismissal was the date that notice expired and stated that the Tribunal ‘implies that notice is always intended to be given’. InMichael Gabor v. NVD Ltd, (UD2436/2011),the Tribunal determined that the date of dismissal was ‘the date when the claimant’s statutory notice expired…’

In this case, the summary dismissal was not justified. Therefore, when notice is considered, the date the complaint was submitted within the six months of the dismissal.

Summary of Respondent arguments on the preliminary issue

The Complainant was dismissed on 29 April 2014. Therefore, in accordance with s.8(2) of the Acts, the latest date on which a claim could have been presented was 29 October 2014. The only exception is if it was deemed that there were ‘exceptional circumstances’, which would have allowed the Court to extend the six months’ limit to 12 months.

It is well established that the date of dismissal is the date that dismissal is communicated to an employee. The date on which an appeal outcome is communicated is not relevant.

TheSharon Barrycase referred to by the Complainant is distinguished from the present case because in that case the Complainant was paid 8 weeks’ salary from the date that dismissal had taken effect. The Tribunal interpreted that as an intention to dispose of obligations under the Minimum Notice and Terms of Employment Act 1973 and, as a result, the effective date of dismissal was the date of expiry of notice. In the present case, the Complainant was dismissed for gross misconduct and was not entitled to be paid for any notice period.

Similarly, in theMichael Gaborcase referred to by the Complainant, two weeks’ notice was paid following the date on which dismissal was communicated, which was again interpreted as saving his employment for those two weeks. In that judgement, reference was made to the observations of Brightman LJ in a case calledSavage v. Sainsburyin which he stated that ‘…if an employee is dismissed on 1 January, on the terms that he then ceases to have the right to work under the contract of employment, and that the employer ceases likewise to be under an obligation to pay the employee, the contract of employment is at an end..’ The decision in that case was approved by the House of Lords in the case ofWest Midlands Co-Operative Society v. Tipton (1986) IRLR112,in which Lord Bridge of Harwich observed that ‘the effective date of dismissal is the date of the initial notification of the dismissal to the employee’.

There is no term in the contract or in the disciplinary procedure, which saves the employment pending the outcome of an appeal and there is no ambiguity regarding the date of dismissal.

While the provision for ‘exceptional circumstances’ in the Acts have since been changed to provisions of ‘reasonable cause’ under the Workplace Relations Act 2015, this case pre-dates this change. Issues regarding the term ‘exceptional circumstances’ were examined in the cases ofByrne v. P.J. Quigley Ltd, O’ Connell v. An Post UD879/2006 and Mater Misericordiae University Hospital v. Dr. Jacqueline Malouf PWD162.

The Applicable Law

Unfair Dismissals Acts 1977 to 2015:
1 Definitions
“date of dismissal” means—
(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—
(i) the earliest date that would be in compliance with the provisions of the contract of employment,
(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973,
8.
:(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 undersection 17of this Act made for the purposes of subsection (8) of this section) to a rights commissioner or the Tribunal, as the case may be, within 6 months of the date of the relevant dismissal and a copy of the notice shall be given to the employer concerned within the same period.

Note-S. 8(2) above was the applicable provision at the relevant time. It has since been amended.

Minimum Notice and Terms of Employment Act 1973
4.
(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—
(a) if the employee has been in the continuous service of his employer for less than two years, one week,
(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,
(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,
(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,
(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

Right to terminate contract of employment without notice.
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.

Deliberation

It is a curiosity of this case that the Court is being asked to consider the circumstances of a dismissal more than 6 years after its occurrence. It is ironic in the circumstances that the Court is required to consider in the first instance if the complaint was submitted within the time prescribed by the Acts.

There is no dispute about the facts that have given rise to this preliminary issue. The Complainant was summarily dismissed on 29 April 2014. His complaint to the Workplace Relations Commission was submitted on 7 November 2014, more than six months after the summary dismissal. The Complainant makes no argument of ‘exceptional circumstances’ so that the Court might consider if an extension of this time limit to 12 months might be justified in accordance with the terms of the Acts applicable at that time.

Rather, it is argued that, in accordance with s.1 of the Acts, as set out above, the Complainant had an entitlement to a two week period of notice which, if applied, would mean that his actual date of dismissal was two weeks later and would mean that his complaint was submitted within the required six months. The Complainant disputes that a summary dismissal was justified and argues that, therefore, the period of notice was applicable.

It is argued that if there was no summary dismissal, or if summary dismissal was not justified, the Complainant is entitled to notice, thereby bringing him within the 6 month statutory time limit. In this instance, the Complainant says that the fairness or otherwise of the dismissal needs to be examined by the Court before it can make a decision on its jurisdiction to hear the case.

The Court does not accept that this is the proper approach. It is akin to asking the Court to exercise its jurisdiction before it determines whether or not it has jurisdiction, in the first instance.

In determining the issue of jurisdiction, the Court must confine itself to the nature of the termination without enquiring into the fairness or otherwise of the decision itself, having regard to the submissions made on the preliminary issue by both parties, the documents referred to therein and the relevant statutory provisions. Only if the Court determines that it has jurisdiction to do so can it go on to consider the fairness or otherwise of the dismissal itself.

The letter of dismissal from the Respondent to the Complainant recites the nature of the allegation that prompted disciplinary investigation as ‘Provoking/instigating a fight on the Company premises’. It goes on to refer to the Respondent’s Disciplinary Rules and that the Respondent considers the Complainant’s actions ‘to be gross misconduct and, having considered all the alternatives, it has been decided to summarily dismiss you with immediate effect from today’. The letter goes on to say that as the Complainant’s actions are considered to be gross misconduct, he is not entitled to pay in lieu of notice.

It is clear that the dismissal is a summary dismissal without notice.

In the Complainant’s contract of employment, there is a clause which states;
‘In the event of the termination of your employment by reason of gross misconduct on your part you will not be entitled to receive notice in accordance with this clause’.
This is in accordance with s.8 of the Minimum Notice and Terms of Employment Act, see above.

Section 4 of that Act is, therefore, qualified by s.8. While no definition of ‘misconduct’ is provided in the Act, the Employment Appeals Tribunal inLennon v. BredinM160/1978took a restrictive view of the types of misconduct that justify dismissal without notice or payment in lieu of notice. The Tribunal stated that the s.8 ‘exemption’ applied only ‘to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer’.

The Respondent’s disciplinary procedures list three type of misconduct, minor, major and gross misconduct. The allegation of ‘Provoking/instigating a fight on Company premises’, which was the basis of the disciplinary investigation in the instant case, is included under the heading of gross misconduct.

There is no entitlement to notice under contract or statute in circumstances where the reason for dismissal is gross misconduct resulting in summary dismissal. The Complainant was dismissed for gross misconduct. Therefore, he had no entitlement to notice. His complaint under the Acts is, accordingly, out of time.

Determination

The Decision of the Adjudication Officer is upheld.

	Signed on behalf of the Labour Court
	Tom Geraghty
TH	______________________
12 February 2021	Deputy Chairman