Complainant

Respondent

Parties

Mariana  Nadaban

National Pen Promotional Products Limited

Representatives

James Egan BL instructed by James H. Murphy & Son Solicitors

Roy Horan IBEC

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-00036392-001

28/05/2020

This case is concerned with a complaint of unfair dismissal. The Complainant began working with the Respondent in June 2016. On the 11th of May 2018 she reported that she was caused to slip and fall on a staircase at work. Post the incident the Complainant returned to work for a couple of months. However, she was signed off work by her GP in July 2018 and remained out sick until November 2019. In the intervening period she submitted personal injuries claim against the Respondent. In November 2019 the Complainant completed some training prior to her return to work. Before she returned to work she was informed of an investigation into what are described as unauthorised orders which resulted in an investigation meeting followed by a disciplinary meeting and she was issued with notice of dismissal the date of which was given by the Respondent as the 15th of November 2019 when she was dismissed without notice for reasons given as a serious breach of policies and procedures; falsification of Company documents which gave the Complainant a pecuniary advantage and unauthorised orders to the value of €12,001.85 resulting in a financial loss to the Respondent. The Complainant received notice of her right to appeal, and the outcome of the appeal was notified to her on the 4th of December 2019. The complaint was received by the WRC on the 28th of May 2020.

Representations on behalf of the Respondent gave rise to or related to two preliminary issues, statutory time limits and dual claims. At the scheduled hearing both preliminary points were argued out by the representatives of the Respondent and Complainant respectively. It was indicated to the parties at the hearing that the connection between the so-called dual claims was not apparent from the documentation provided. In relation to the time limit issue, the parties were informed that either a preliminary ruling or a decision would be issued on this aspect (and on the dual claim) having considered the issues raised. Were the ruling on the time limit to favour the Complainant the hearing would be reconvened or in the alternative a decision was to issue on the two preliminary points. As explained and accepted by the representatives at the hearing, a finding against the Complainant on either of the Preliminary Points would mean that the full substantive evidence would not be heard in the case or at best the hearing would be adjourned on the point of the dual claim. A ruling in favour of the Complainant on both points would mean that the hearing would be reconvened to hear the substantive evidence in full.

Preliminary issues

It was submitted by reference to UD1264/2008 RP1080/2008 Sheehy v Moriarty that the full matter could not be heard unless the adjudication officer was satisfied that there was power and jurisdiction to do so.

“The Chairman explained that a tribunal could not proceed to hear any case substantively unless it was satisfied that it had the power and jurisdiction to do so... The issue of the Tribunal’s power and jurisdiction had to be addressed first and the Chairman asked the party to address this issue in their submissions”.

Preliminary Issue 1 - Dual claim

On the 25th of July 2019 the Respondent received a High Court Personal Injuries Summons which contained allegations of an alleged breach of duty, including statutory duty. A copy of the Personal Injuries Summons was provided. The Respondent asked that the case of Morgan v Irish Horse Welfare Trust [2014] ELR 41 be considered as applying in this matter. In that case as in this complaint of unfair dismissal, there was a claim for compensation for loss of earnings. The similarity is that in that case the Complainant’s representative opposed that application claiming that there were two separate claims, one for personal injury and one for financial loss arising from her dismissal and that both claims were permissible. In the current case the Complainant’s representative may also seek to provide that the Complainant is not seeking double compensation and the High Court would be obliged to take into account any award made by the adjudicator and that the High Court claim was nothing to do with loss of income. In the Morgan v Irish Horse Welfare Trust case the EAT did not agree with the complainant because it took the view that the complainant was making an artificial distinction between the two actions and both actions arose from the same allegations. It adjourned the case pending the resolution of the High Court case. If the Adjudication Officer agrees with the Respondent on this point, the current hearing should be adjourned.

Particular attention was drawn to that part of the claim which said:

“The Plaintiff claims damages for personal injury, other loss and damage caused by reason of the negligence, breach of duty including breach of statutory duty of the Defendant, together with interest and costs”.

Preliminary Issue 2 - Time limits

The date of dismissal was the 15th of November 2019. This was clearly set out in the letter of dismissal and the dismissal was a summary dismissal following a fair and thorough investigation and disciplinary process which came from an allegation of gross misconduct.

Section 8(2) of the Unfair Dismissals Acts 1977 to 2015 was cited:

“(2) A claim for redress under this Act shall be initiated by giving a notice in writing... (a) within the period of 6 months beginning on the date of the relevant dismissal, or (b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause...”

The date of the alleged contravention (unfair dismissal) is the 15th of November 2019. The time limit for submitting a complaint was therefore the 14th of May 2020 whereas the complaint was submitted to the WRC on 28th May 2020, clearly beyond the six-month period set out in section 8(2)(a). It was submitted that the Complainant was also being advised by her solicitor during that period in relation to her personal injuries claim and therefore there is no reason why the Complainant could not have pursued this claim within the timeframes outlined under the legislation.

It is contended that there is no term in either the contract or disciplinary procedure which saves the employment ending pending the outcome of an appeal, and no ambiguity exists as to the effective date of the dismissal. The disciplinary policy unambiguously states that: “Any disciplinary sanction imposed will be implemented once a decision has been made and will be reversed if an appeal is successful.”

The dismissal letter issued to the Complainant stated in no uncertain terms that:

“accordingly and in accordance with our disciplinary procedure, this letter is to confirm that you have been summarily dismissed without notice, effective from today’s date, Friday 15th November 2019... Your last day of employment with the Company is today 15th November 2019.”

In the section of the contract of employment entitled “Termination”:

“Notice will not be given, nor will you have any entitlement to notice in the event of dismissal for misconduct or other serious breach of contract of other Company rules... Serious [gross] misconduct may lead to immediate dismissal without any notice period”.

The final date of payment to the Complainant was to the 15th of November 2019, albeit paid on the 16th of November 2019 as indicated at the hearing. The payment of wages ceased on the 16th of November, but the effective date of dismissal was the 15th of November 2019.

Anticipating a claim of grounds of reasonable cause in seeking an extension of the statutory six-month time limit the Respondent relied on Tyco Healthcare EETO25/2002 (a failure of the complainant’s legal advisors to file her proceedings on time); Jozefina Kolarska v Ikea Ireland Ltd UD2362/2011 (a reliance on the date the complainant received the outcome of the appeal is the date from which the time limit was to be calculated). Reference was made to Cementation Skanska Ltd v Tom Carroll referring to cogent reasons for waiting until two weeks after the six-month time limit to submit the complaint.

Preliminary issue 1 - Dual claim

The straightforward response of the Complainant representative on the matter of the so-called dual claim was expressed in a letter to the Workplace Relations Commission on the 24th of November 2021:

“It is our respectful view that the matter should proceed and the claim that the Complainant is seeking double compensation is misconceived. In this first instance, the Complainant has initiated personal injuries claim which includes a claim for loss of earnings. The claim for loss of earnings is limited to the time period when the Complainant was absent from work due to her injury, up to the 1st of November 2019.

In respect of the claim under the Unfair Dismissals Act brought before the WRC the Complainant’s claim is for a loss arising from the date of dismissal which occurred in December 2019. It is open to the adjudicator, if the Complainant succeeds to award compensation from the date of dismissal to the date the Complainant secured alternative employment. It is not open to the adjudicator, if he or she finds for the Complainant, to make an award of compensation to encompass a time when the Complainant remained in the employ of the Respondent.

It is submitted that where the High Court and the WRC are addressing two different timeframes in respect of loss that it is open to the adjudicator to hear and determine this particular claim on the scheduled hearing date. In those circumstances, the case cited by IBEC can be distinguished because the circumstances of the case are different. The two actions in the Morgan case arose from the same allegations whereas the Complainant’s unfair dismissal and personal injury do not emerge from the same set of circumstances.”

This position was repeated by the representative on the record at the hearing with emphasis on the period covered by the personal injuries claim which was limited to the time when the Complainant returned to work on the 1st of November 2019.

Preliminary Issue 2 - Time Limit

In the form submitted to the Workplace Relations Commission and in subsequent correspondence of the 18th of June 2021 on the matter of time limits, the Complainant’s solicitor contended that the date of dismissal was the 4th of December 2019. The following is from the letter of 18th June 2021 referring to correspondence provided by IBEC to the WRC:

“The letter neglects to state that [the Complainant] appealed her dismissal in accordance with her rights and the hearing of the appeal took place on 29th November 2019. The outcome of the appeal was given to the Complainant on 4th December 2019. It is inconceivable for a party to lodge an unfair dismissal claim prior to the dismissal. There was an internal appeals process, and the Applicant accessed this appeals process. In these circumstances, the dismissal date is from the appeals decision as the matter could have been overturned on appeal.”

It was not accepted that the complaint was made out of time. In this regard reference was made to stage 4 of the Respondent’s own disciplinary procedure under further disciplinary action where it deals with the matter of an appeal:

“The employee concerned will have a right of appeal in writing to the HR Manager or another appropriate person as appointed by the Company within ten working days of the employee being dismissed. ...The HR Manager will respond to the employee as quickly as possible... and the response will be National Pens final decision on the dismissal. Any disciplinary action imposed will be implemented once a decision has been made and will be reversed if an appeal is successful.”

It was submitted that from this wording it is self-evident that the final decision to dismiss is the appeal decision and not the initial decision to appeal. It is clear that the sanction imposed will be implemented only once a decision has been made (on the appeal). On this basis the 4th of December represents the date of the decision regarding the appeal and is therefore the date of dismissal.

In addition to the foregoing arguments, it was submitted that following her dismissal the Complainant was forced to leave her accommodation and seek alternative accommodation which took some time and was difficult for her; there were the difficulties caused by Covid and in particular having access to an in-person meeting with her solicitor. This was not a case where a document was agreed with a solicitor for submission and there was any delay in lodging the complaint to the Workplace Relations Commission as cited in the Tyco case. The Complainant’s third language is English, and it would have required an in-person meeting with the solicitor to discuss her dismissal and to take advice and the solicitor’s offices were closed from March until June. Once it became apparent that there was a complaint of unfair dismissal to be made every effort was made to submit the complaint with due regard to the time limits. 

Preliminary Issue 1 -Dual Claim

The link drawn between the personal injuries claim and the complaint of unfair dismissal is not accepted. Nothing in the personal injuries claim which relates to a fall in the workplace and includes a very specific timeframe which ended when the Complainant returned to work can be legitimately extended by the Respondent for the purposes of succeeding in having the hearing of the Complaint deferred to allow for the outcome of the High Court Proceedings.

The application for a deferral based on the so-called dual claim is rejected.

Preliminary Issue 2 – Date of Dismissal and Time Limit

The date of 15 November 2019 is accepted as the date of dismissal. No reasonable interpretation could be taken from the clear and unambiguous wording of the terms of the dismissal letter issued on that date. ‘Summarily dismissed without notice’ ‘effective fromtodays date’ Your last day of employment with the Company is today, 15th November 2019.’

Each of these clauses is emphatic. Together they leave no room for doubt in the matter-the Complainants employment was ended on and from that date. An appeal-is an appeal of that decision which it is accepted in practice is hard to reverse-but is a reversal of that decision and the fact of the dismissal is required for a successful appeal. The dismissal is not stayed pending the appeal. The contention on behalf of the Complainant that the date of dismissal was December 4th, 2019 is rejected.

Having found against the Complainant on the effective date of termination, the remaining preliminary matter is that of the time lime limit and whether to allow an extension of the initial time limit of six months provided under the Unfair Dismissals Act. It is worth restating the relevant provision:

 “(2) A claim for redress under this Act shall be initiated by giving a notice in writing... (a) within the period of 6 months beginning on the date of the relevant dismissal, or (b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause...”

Section 41 (8) of the Workplace Relations Act 2015 which applies for example to complaints under the Organisation of Working Time Act 1997 has a different wording for the test to be applied by an Adjudication Officer in considering application for an extension of time under that legislation:

‘if he or she is satisfied that the failure to present that complaint or refer the dispute within that period was due to reasonable cause.’

[emphasis added in both extracts]

The wording at Section 41 (8) of the Act of 2015 is the same as that used in the original Organisation of Working Time Act 1997 and which was considered in the oft quoted Cementation Skanska Determination of the Labour Court. The language of both the Act of 1997 and the Act of 2015 set a modest enough bar at due to reasonable cause. The wording of the Unfair Dismissals Act however, in using the word prevented provides for a higher bar to be considered by the Adjudication Officer. The word suggests something active which was outside the Complainants immediate or direct control and while not the same, is more consistent with the term ‘exceptional circumstances prevented’ previously contained in the Unfair Dismissals Act 1993 until amended more recently. That factor of prevented is still present in the most recent version of the Unfair Dismissals Act.

In the current case I find nothing occurred in the six months after November 15th, 2019, which was such that it ‘prevented’ the Complainant making her complaint within the initial six months following dismissal. Accepting fully that her dismissal was a life changing event from a financial perspective, nothing prevented the Complainant taking advice from a solicitor by telephone or email or contacting the WRC for advice as to how to go about making a complaint and searching online for information as to her rights and time limits. Covid was a major event certainly, but many thousands of people managed to make complaints to the WRC in the period since remote working became a daily fact of life, including in the WRC, and many of those complainants have no English or very little. Access to a solicitor is not required to make a complaint with approximately half of all complainants pursuing complaints without representation.

The Complainant has failed to provide reasonable cause why she was prevented from making her complaint within six months of her dismissal. An extension of the initial time limit of six months allowed to submit a complaint under section 8 (2) (a) of the Unfair Dismissals Act to submit a complaint is not found to be justified in the circumstances.

I am not satisfied that the giving of the notice of the complaint of unfair dismissal to the Director General occurred within six months of the date of dismissal. Neither am I satisfied that the failure to notify the Director General of the complaint within the six-month period provided for in Section 8(2)(a) was prevented due to reasonable cause as required under the 1977 Act as amended and therefore decline to extend the initial period of six months set out in that same section of the Act.

Unfair Dismissal-Time limit