Complainant

Respondent

Parties

Shauna  Cox

Toytown Toys Limited t/a Toymaster

Representatives

Sean Mahon

Mahon Sweeney Solicitors

 Peninsula Group Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00033712-001

09/01/2020

The Complainant's commenced employment in 1 October 2018.  She worked 37 hours per week and was paid €353.54 per gross week.

On commencing employment, she arranged with the Respondent that she was not available to work on Saturdays as she was undertaking a healthcare course. This was a significant concession on the part of the Respondent.

Following a disciplinary procedure, her employment was terminated by letter dated 13 June 2019.  The effective date of termination was given as the 26 June 2019. She commenced an appeal of that decision on 14 June 2019. She received an outcome letter of her appeal on 11 September 2019. The appeal upheld her dismissal.

The Complainant lodged her claim with the WRC on 9 January 2020.  She set out her date of dismissal as the 11 September 2019. 

The Complainant argued that the internal appeal acted as a stay on her dismissal.  She relied on the case of UPC Communications Ireland v Employment Appeals Tribunal (Respondent) and Ann Marie Ryan (Notice Party), [2017] IEHC 567 wherein the High Court agreed with the decision of the Employment Appeals Tribunal in this case, stating that because the employee’s terms of employment were silent on the implications and effectiveness of the notice of dismissal once issued, the employee was entitled to believe that her dismissal was stayed pending the outcome of an appeal and therefore her complaint under the Unfair Dismissal Act was not out of time.

The Complainant also made an application for an extension of time to the statutory time limits. She gave evidence that she gave birth on 30 October 2019 by caesarean section and that it was a difficult birth.  The Complainant gave evidence that she couldn't drive for six weeks after giving birth and that she suffered from postpartum anxiety for a period of six months after giving birth. She submitted a medical report from her GP which set out that she had been prescribed medication for anxiety post-partum.

The Respondent opposed the Complainant's application for an extension of time. They relied on the case of Cementation Skanska (Formerly Kvaerner Cementation Limited) v Carroll DWT0338.  The Respondent noted that the Complainant had served (erroneously) a Form ES.1 through her solicitors dated 14 October 2019.  The ES.1 form contained the same details as the WRC application. This was replied to by the Respondent on the 10 December 2019.

At the hearing, I reserved my decision on whether to accept the Complainant's application to extend the time limit to lodge her complaint.

The Complainant's case was on 28 March 2019 she notified her manager that she was pregnant. She was required to give proof of pregnancy which was duly provided.

She gave evidence that one of the Company directors said to her that she could not be sacked for being pregnant, but if she wanted to, she could still be sacked.

She submitted that within two days of advising the Respondent he was pregnant, she was contacted by her manager enquiring "whether or not the pregnancy was planned or unplanned".

The Complainant explained that as soon as the Respondent was aware that she was pregnant, it started to take issue with her work. It advised her that there was a complaint from her colleagues regarding the fact that she did not advise the Respondent that she was no longer attending her healthcare course and that she was available to work on Saturdays. 

The Complainant explained that she did attend the healthcare course until 17 November 2018 but that it was “not for her”. She advised that she applied for annual leave on Saturday 23 November 2018 to go to a wedding. She explained she told her manager that she could go back on the roster for Saturdays. She was rostered for Saturday 22 December 2018.  She submitted that the rosters were completed a month in advance and this explained why she was not rostered to work on a Saturday until December 2018.

She explained she did seek time off for 21 January 2019. She denied that she had advised this was for her graduation.

Following a flawed investigation and disciplinary process, the Complainant was dismissed.  The Complainant appealed the decision. The same person who made the decision, heard the appeal and dismissed the appeal without any regard to what the Complainant had to say. The Complainant appealed the decision further, but the appeal was ultimately unsuccessful.

The Complainant submitted that the only reason she was dismissed was because she was pregnant, and the other reason was simply manufactured. She submitted that the appeal process was a sham. She submitted that she was dismissed because she was pregnant and for no other reason.

At her interview for her role with the Respondent, the Complainant informed the Respondent that she was undertaking a course at weekends which would finish at Christmas.  This meant that the Complainant was unable to work on Saturdays for the duration of the course.

The Respondent's position was that Saturday was their busiest day and they informed the Complainant that her working week was inclusive of Saturdays, however it would grant her leave for the purposes of the course until its completion.

It submitted on 16 April 2019 it came to light that the Complainant had dropped out of her course the previous year. This is very disconcerting as the Complainant had requested time off for her graduation in January 2019.

The Respondent invited the Complainant to an investigation meeting and warned the Complainant that the allegation of constructed deception was classified as gross misconduct in the workplace and it could be an immediate stackable offence.

The Respondent held a disciplinary hearing on 16 May 2019.  The decision-maker was to be the Complainant's manager. The Complainant was invited to a further disciplinary hearing on 5 June 2019 to clarify outstanding issues.

The Complainant was dismissed for breach of trust on 13 June 2019 to take effect on 26 June 2019.  The Complainant was offered an appeal of the outcome.

On 14 June 2019, the Complainant appealed the decision to dismiss her from employment. There was no reference to pregnancy in her appeal.

The Complainant's manager heard her appeal on 19 June 2019.

On the 9 August 2019 the Complainant made a fresh appeal, identifying that her manager had predetermined the issue in her original finding and referenced her pregnancy.

The Respondent agreed to give the Complainant a second appeal.

On 9 September 2019 the second appeal was heard. This was carried out by a relation of the company directors. The outcome of the appeal was notified to the Complainant on 11 September 2019. The decision-maker upheld the dismissal.

The Respondent submitted that the Complainant's pregnancy was not related to the decision to dismiss her. It submitted that after the Complainant had notified it of her pregnancy, she had received a good performance review. It submitted that it had no issue with the Complainant's work but due to the structure and nature of its business it could not continue to retain the Complainant following such a breakdown of trust and considered it to be gross misconduct.

In the Employment Equality Act 1998 (as amended) the definition of dismissal is set out as

“dismissal” includes the termination of a contract of employment by the employee (whether prior notice of 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 to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly;

I reviewed the Respondent's letter of 13 June 2019. It set out that the decision maker decided that her employment should be terminated. The letter went on to say

"This will take effect from 26 June, you are due 8 days annual leave to which you are entitled to and will be forwarded to you.

You have the right of appeal against my decision and should you wish to do so you should write to XXX Manager within 5 days."

I reviewed the Disciplinary Appeal Procedure set out in the Staff Handbook.  It included a clause

"Any disciplinary penalty imposed on you, as a result of the Companies disciplinary procedures, will be effective from the date the penalty was initially imposed."

There was no evidence presented to me that the Complainant continued on payroll during the internal appeal stage. 

In addressing whether the appeal acted as a stay on the termination of the Complainant's employment, I do not accept the Complainant's submission that there is a lack of clarity or ambiguity as to the implications of the letter of dismissal which issued on 13 June 2019 when read in conjunction with the disciplinary process. It cannot be said that the disciplinary process was silent as to the implications of an appeal.

Desmond Ryan in his book Redmond on the Dismissal (third edition) reviews the approach of the EAT in Ryan the UPC Communications. He submitted that this case was an outlier authority distinguishable on its facts in light of the lengthy delay on the part of the employer in that case to process the employee's appeal.

It was held in Roberts V West Coast Trains Ltd [2004] IRLR 788 that a successful appeal can revive the employment contract but that does not have the corresponding effect that until a decision to dismiss has been confirmed on appeal it is not a decision to dismiss.

Therefore, I find the time started to run from 26 June 2019.

The Complainant lodged her complaint on 9 January 2020 which is outside the six months time limit.

In relation to the Complainant's application to extend time, Section 41(6) to (8) of the Workplace Relations Act provide as follows:

• “(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.

(7) …

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

In its determination in Cementation Skanska (Formerly Kvaerner Cementation Limited) v Carroll DWT0338, the Labour Court considered the import of the test of reasonable cause as it applies to the extension of the time limit for referring a statutory employment complaint in the following passage:

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.” (emphasis added).

It is clear from the documentation submitted that the Complainant had engaged a solicitor on 14 October 2019. Her solicitor erroneously served an ES.1 form on the Respondent. It set out that on 11 September 2019 the Complainant was dismissed from her employment. It stated that she was dismissed because she was pregnant and for no other reason. The reason advanced was that both the decision to dismiss and appeal process were a sham.

The claim lodged with the WRC on 9 January 2020 contained the same submission.

I accept that the Complainant experienced anxiety postpartum and was medically treated for same.  However, I have not been satisfied that there was a causal link between the Complainant's anxiety and the delay in lodging her Complaint in time. The Complainant had engaged her solicitor within the requisite six months time frame of her dismissal.  In October 2019 her solicitor was able to substantiate her complaint. This predated the birth of her child and her subsequent anxiety.

I therefore, find that the Complainant’s explanation for not referring her complaint until some seven months after the date of her dismissal does not satisfy the test of reasonable cause as it has been interpreted and applied by the WRC and Labour Court.

I have no jurisdiction to hear this complaint as it was lodged outside the statutory timeframe.

I decide that the late submission of the complaint was not prevented due to reasonable cause.

Internal appeal. Stay on decision to dismiss.

UPC Communications Ireland v Employment Appeals Tribunal (Respondent) and Ann Marie Ryan (Notice Party), [2017] IEHC 567

Reasonable cause

Cementation Skanska (Formerly Kvaerner Cementation Limited) v Carroll DWT0338