FULL RECOMMENDATION
PARTIES : AA EURO RECRUITMENT IRELAND LIMITED DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No.ADJ-00025684 CA-00032681-001 BACKGROUND: 2.The Employer appealed the Decision of the Adjudication Officerto the Labour Court on 25th June 2020 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place in a virtual courtroom on 1st March 2022. The following is the Determination of the Court:- DETERMINATION: This is an appeal by AA Euro Recruitment (hereafter the Respondent) against an Adjudication Officer’s Decision ADJ-00025684 given under the Unfair Dismissals Act 1977 to 2015 (the Acts). The Adjudication Officer held that Mr Cotter (hereafter the Complainant) was unfairly dismissed and awarded €12,000. Background The Complainant commenced employment with the Respondent on the 2ndFebruary 2018 and claims that his employment was terminated by way of dismissal on the 6thDecember 2019. The Respondent submits that the Complainant was not dismissed and that he was placed on temporary lay-off in line with this contract. They also submitted that the complaint was submitted before what he is contending was the date of dismissal and is outside the time limits set down in statute, therefore the Court does not have jurisdiction to hear the complaint. As dismissal is in dispute it is for the Complainant to establish that a dismissal took place. The Court advised the parties that as the fact of dismissal is in dispute the Court would have to hear the case in full before it could decide on the time limits issue in this case. There was an initial issue in respect of who the correct employer was, and the Court dealt with that as a stand-alone issue and issued its determination UDD2112 on that matter prior to this hearing. Summary of Complainant’s submission and evidence. The Complainant commenced work with the Respondent on the 2ndFebruary 2018. In and around the end of June 2019, the work on the site where he was placed came to an end and he was assigned to a new site. An incident occurred on the new site and by letter of the 11thNovember 2019 he was suspended on full pay pending an investigation into the incident. The Complainant was invited to a meeting and advised that he could be accompanied by a work colleague or a nominated person. By letter of the 18thNovember 2019 he was advised that he was being placed on temporary lay-off with effect from 18th November 2019. He received a further letter on the 20thNovember 2019 advising that as a result of circumstances beyond the Respondent’s control, he was being placed on temporary lay-off from the 18thNovember 2019. The letter also offered him the option of being paid one week’s notice and requesting that if he wanted to take up that offer, he should confirm by email or letter. The Complainant did not accept the offer of one week’s notice. The Complainant’s Union wrote to the Respondent by letter dated 19thNovember 2019 acknowledging that the Complainant was on lay-off and referencing posts that had been recently advertised in Monkstown, Cork advising that the Complainant would be willing to accept one of those posts. By letter of 22ndNovember 2019 the Respondent replied advising that those posts had been filled. The Complainant submits that the posts were only advertised some days earlier and that it is difficult to see how they could have been filled so quickly particularly where Garda vetting has to take place. No reason was given for not offering one of the advertised posts to the Complainant. By letter of the 6thDecember 2019 the Respondent again wrote to the Complainant advising that as he was on temporary layoff, they wanted to inform him that they did not have any work in Cork at that point in time and did not envisage any work coming on stream. They offered one weeks pay in lieu of notice. The letter requested that he confirm his agreement to this, but he did not respond. Prior to receiving that letter, he had submitted his complaint of Unfair Dismissal to the WRC on the 3rdDecember 2019. The Complainant never heard anything further from the Respondent until June 2020 when he received outstanding holiday pay. The Complainant’s representative submitted that the Respondent’s submission that the Complainant remained on temporary lay-off until June 2020 is not viable. The Complainant in his evidence to the Court stated that he believed he was dismissed on the 6thDecember 2019. The Complainant could offer no explanation for why he had submitted his complaint on the 3rdDecember 2019 if he did not consider himself dismissed or in danger of being dismissed at that time. In response to a question under cross examination. The complainant accepted that his contract provided for lay off and that at the time he submitted his complaint he was only on a lay off for just over two weeks. The Complainant gave evidence in respect of his efforts to mitigate his loss. Summary of Respondent’s submission and evidence. The Respondent submits that the Complainant was not dismissed and remained on temporary layoff until June 2020 when the Respondent paid him his outstanding annual leave and, in the alternative, if he was dismissed the earliest, he could have been dismissed was 6thDecember 2019 and therefore his complaint was not made within the time limits. The Respondent submitted that following an incident that the Complainant was involved in on the site where he worked the client issued a site ban. The Respondent had no other work available in the Cork area at that point in time and as provided for in the Complainant’s contract placed the Complainant on temporary layoff. Mr Galgey HR and Health and Safety manager for the Respondent informed the Court that there had been an altercation between the Complainant and another member of staff onsite. That member of staff lodged a complaint and following this an email was received from the client stating that the Complainant was not allowed on site. There were no other jobs available in the area, so he was placed on temporary layoff. In respect of the two security jobs in Monkstown they were actually filled on the 27th/28thOctober 2019 and they finished up on the 5thDecember 2019 they were part time weekend work. The Respondent submitted that these adverts are normally posted for a six-week period and can be picked up by other sites so they have no control over when it can still be seen. Mr Galgey stated that the two posts were temporary pending the filling of a bigger contract on that site. The Respondent had hoped to be awarded the bigger contract and if that had happened, they would have had alternative work for the Complainant. However, on the 6thDecember 2019 they were advised that they were unsuccessful. At that point they knew they would not have any new work in the area for the foreseeable future, so they wrote to the Complainant offering to pay him one weeks’ notice, but he did not respond. Mr Galgey stated that the Complainant therefore remained on lay-off. Mr Galgey accepted that in the normal course of events temporary layoff would only last for about six weeks. The Law
6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. Issues for the Court As dismissal as a fact is in dispute it is for the complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act. Discussion The Respondent in this case submits that the Complainant was on temporary lay-off until at least June 2020 when he was paid outstanding holiday pay. The Court does not accept that to be a true reflection of the position. The Respondent’s own witness confirmed that normally a temporary lay-off would only last for six weeks. He also confirmed that the Respondent did not have any contact with the Complainant after the letter of 6thDecember 2019 until they issued the letter in June 2020 in respect of outstanding annual leave. The Court finds that these are not the actions of an Employer who has staff on temporary lay-off and determines that the Complainant was not on layoff for the period contested for by the Respondent. The next issue the Court has to consider is whether a dismissal occurred. The Complainant in his sworn evidence to the Court submitted that he was dismissed with effect from the 6thDecember 2019 the date on the last correspondence he received from the Respondent. The Respondent confirmed that after the letter of the 6thDecember 2019 advising that they had no other work in the area and offering to pay the Complainant a weeks’ notice, they made no further contact with the Complainant. The Court finds based on the evidence before it and in particular the evidence of the Respondent that they did not engage with the Complainant after that date that the Complainant was entitled to consider himself dismissed from that date. The final issue for the Court to consider is whether the complaint was submitted outside of the time limits. The Court drew both parties’ attention to the case of Alan Brady v Employment Appeals Tribunal [2015] 26 E.L.R.1 but neither party made a submission in respect of same. It is not disputed that the complaint was lodged with the WRC on the 3rdDecember 2019 three days before what the Complainant in his evidence to the Court stated was his date of dismissal. Section 8 (2) (a) of the Act states that a claim for redress should be initiated “withinthe period of six months beginning on the date of the relevant dismissal”. The Court has found in this case that the relevant dismissal occurred on the 6thDecember 2019. Unlike the Brady case citied above the Complainant in this case did not submit to the Court that the complaint was made during the notice period. Nor was it disputed that at the time he submitted the complaint he was two weeks into a temporary layoff, which is provided for in his contract. The Court determines that the complaint was not submitted within the statutory time limits and therefore the court does not have jurisdiction to hear the case. The appeal succeeds. The decision of the adjudication officer is set aside. The Court so determines.
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