ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00034394

Parties:

Complaint(s):

Date of Adjudication Hearing:  17/06/2022

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

PRELIMINARY MATTER

The Act states at Section 1:

“ dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

( b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

On the facts the employee while she may have been contemplating leaving was an employee at the date, she lodged her form.

I note Redmond on Dismissal Law [3rd Ed Bloomsbury], where Ryan summarises, the law concerning the premature lodging of an Unfair Dismissal Claim:

(5) Clarification of correct legal position where claimant lodges claim prematurely

[22.74]

For many years, confusion surrounded the correct legal position concerning premature lodging of an unfair dismissal claim prior to the date of dismissal. Determinations of the Employment Appeals Tribunal on this question lacked consistency. For example, in Barry v Newbridge Silverware Ltd, 93 the respondent contended in a preliminary application to the EAT that the claimant’s unfair dismissal claim was pre-emptive as it was lodged prior to the date of dismissal. The claimant had been informed that her employment was being terminated for gross misconduct on 10 September 2012. The termination letter stated that the payroll department had been instructed to pay eight weeks’ basic salary from the date of the letter. The respondent argued that since payment was made in lieu of the claimant’s statutory notice period, the actual date of termination was 12 November 2012; the date of expiry of the notice period for which the claimant was being paid in lieu.

The claimant sought to refute this argument by claiming that as she was summarily dismissed for gross misconduct, the payment of eight weeks basic salary constituted a ‘goodwill gesture of some sort’ and contended that the date of dismissal was 10 September 2012. The EAT held that ‘it is long recognised … and is prescriptively imposed by the legislation that the date of dismissal will be the date on which notice expires (whether notice is imposed by contract or statute)’. The EAT interpreted the payment of eight weeks’ basic salary as ‘an intention to dispose of obligations arising under the Minimum Notice and Terms of Employment Act 1973’ and held that the date of termination of employment was 12 November 2012.

The EAT concluded, therefore, that the unfair dismissal claim was lodged too early and ‘in the course of her ongoing employment’. In these circumstances, the Tribunal did not have jurisdiction to hear the claim.

[22.75]

Confusingly, a contrasting approach was adopted by the EAT in Matthews v Sandisk International Ltd. 94 In that case, the Tribunal similarly held that the filing of a notice prior to the date of termination of employment constitutes the giving of notice for the purposes of s 8(2) of the Acts. The EAT found that by lodging a claim prior to the commencement of the prescribed time period, the claim was with the Tribunal at the commencement of, and throughout the prescribed period.

[22.76]

This approach, however, must be considered afresh in light of the clarification brought about by the 2014 High Court decision in Brady v Employment Appeals Tribunal and Bohemian Football Club. 95 The claimant was employed as a bar manager of the second respondent. On 16 December 2011, he was dismissed by reason of redundancy. After being informed of his dismissal, the claimant asked when his dismissal was effective, and was informed ‘Now’. The employer did not provide a notice of dismissal nor did a P45 issue. The claimant lodged an unfair dismissal claim on 23 December 2011 and cited his date of redundancy as 16 December 2011. When the matter came before the Tribunal, the employer claimed that the claimant’s claim had not been validly brought in time, contending that the claim was lodged before the expiration of the two-week redundancy notice period and hence, before the dismissal took effect. The Tribunal accepted this argument and held that as the claimant filed his claim before the date of dismissal, it did not have jurisdiction to hear the claim. The claimant instituted proceedings by way of judicial review of the EAT’s decision.

[22.77]

The High Court (Barrett J) quashed the decision of the EAT and held that it did indeed have jurisdiction to hear the claim. Barrett J emphasised that the EAT had notice of the claim at the commencement of, and throughout, the six-month period post-dismissal within which the claimant was permitted to institute the proceedings. The High Court stated that it would be absurd to find that a claimant should be denied the opportunity to bring a claim for unfair dismissal simply because the adjudicating body had notice of the claim immediately prior to the applicable six-month period. Barrett J drew support for this conclusion from the equitable principle that ‘Equity aids the vigilant, not the indolent’. 96

[22.78]

Barrett J was further satisfied that this conclusion was in keeping with the language of s 8(2) of the Unfair Dismissals Acts which provides that notice must be given within six months ‘beginning from the date of the relevant dismissal’. The High Court held that in circumstances such as those in this case, giving notice to the Tribunal on one date such that it has notice on another date complies with the requirements of the Acts. The High Court noted that prescribed time periods are typically intended to ‘thwart the tardy, not punish the prompt’ 97 and held that the Tribunal did have jurisdiction to hear the claimant’s claim. The High Court directed that a different division of the Tribunal hear the claim. The decision of the High Court in Brady thus provides a welcome and pragmatic clarification of this area of Irish dismissal law and the WRC now has clear guidance from the High Court on this question.

In this case the form was lodged with the WRC on the 6th of August 2021 and the dismissal in fact (which was a resignation) occurred on the 26th of April 2022, on the most broadest application of Brady, this premature lodging of the complaint is premature as it is not made within the 6 months timeframe provided for under legislation.

However, the learned judge at paragraph 9 states:

9. Of course there will be some boundary in time and some circumstances in which an ostensibly premature notice will be found in fact to have been premature and thus not duly lodged within the appropriate time-period for the purposes of section 8(2). However, in this case, the purpose of the law, the principles of equity, the practical reality, and the previous case-law of the Employment Appeals Tribunal all lead to the same end, which is that the Tribunal does and did have jurisdiction to hear Mr. Brady's claim

In this case the very fact of dismissal is in dispute as well as premature lodging of the complaint. It is not settled that in fact a constructive dismissal did occur. In this case the burden rests with the employee to prove that is so.

I am satisfied that this claim is not properly before me having regard to the fact that it was lodged when the employee was still in employment and no dismissal had taken place or had the employer notified the employee that her contract would be terminated. In these circumstances I have no jurisdiction to hear this complaint.

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Dated:   11th July 2022

Workplace Relations Commission Adjudication Officer:  Brian Dalton

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