ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00046242

Parties:

Complaint:

Date of Adjudication Hearing:  26/10/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015   and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015,   following 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:

The Complainant contends that he was unfairly dismissed following a disciplinary process which found that he was guilty of gross misconduct in relation to his long term absence from work, in that he refused to return to work despite occupational health specialists recommendations.

Summary of Respondent’s Case:

The Respondent argues that as the Complainant was dismissed with effect from 9th November 2022 and as his complaint of unfair dismissal was submitted on 15th June 2023, the complaint is out of time.

The Complainant was dismissed on 9th November 2022 and the dismissal letter clearly stated this date.   He was afforded a right of appeal and the opportunity to confirm that he would return to work following occupational health specialist’s recommendations.  He declined to confirm and his dismissal was upheld.

It is argued that the letter dated 23rd January 2023 confirmed his dismissal with effect from 9th November 2022 and that the Complainant was paid his holiday entitlements up to that date which was the termination date of his employment.  The Complainant’s complaint is out of time.

Summary of Complainant’s Case:

The Complainant contends that the date of dismissal is the 23rd January 2023 when the Complainant’s dismissal was confirmed.   It is argued that where a date of dismissal is not clear it falls to be considered what a reasonable employee would have understood the employer’s intention to be in the circumstances.   Case law was quoted in support of the argument (Devaney v DNT Distribution Company Limited (UD 412/1993).  Cementation Skanska v Carroll was quoted as thestandard for what constitutes reasonable cause.  It is argued that the Complainant was unclear until 23rd January 2023 when he received the outcome of his appeal. He would not have instructed his solicitor until after 23rd January 2023 once he knew the outcome of his appeal. It is argued that an extension of time should be given as the request to extend is inextricably linked to reasonable cause.

Findings and Conclusions:

The complainant was received on 15th June 2023.

The Respondent asserted that the date of dismissal was the 9th November 2022 which date was confirmed in their letter of dismissal dated 15th November 2022. They allowed the Complainant the opportunity to appeal and the outcome of the appeal by letter dated 23rd January 2023 confirmed the dismissal.   The Complainant submitted that the effective date of dismissal was the 23rd January 2023 when he was advised of the outcome of the appeal.

The Complainant was dismissed for gross misconduct for insubordinate behaviour and failure to follow contractual obligations.  Essentially the Complainant refused to entertain a return to work following occupational health specialists’ recommendations with which he disagreed.

The letter of dismissal dated 15th November 2022 clearly stated the dismissal was a summary dismissal effective from 9th November 2022.   The outcome of appeal letter stated that the dismissal of 9th November 2022 was upheld.  The outcome of appeal letter was dated 23rd January 2023 and the Complainant seeks to have this date declared as the date of dismissal or in the alternative, allow for an extension of time if the dismissal date is deemed to be 9th November 2023.

Section 8(2)(b) of the Unfair Dismissals Act 1977 provides that an adjudication officer be “satisfied that the giving of the notice within the period referred to in paragraph (a) [submitting the complaint within six months] was prevented due to reasonable cause”.

In relation to the date of dismissal, I find that the letters dated 15th November 2022 and 23rd January 2023 are clear that the date of dismissal was 9th November 2022.   The complaint is therefore out of the statutory time limit unless extended.

In relation to the request for an extension of time, the Complainant relies on the argument that the absence of a detailed explanation as to what the exact date of dismissal was constituted reasonable cause.

I find that the correspondence was sufficiently clear that the date of dismissal was 9th November 2022.   The Complainant relied on the case of Devaney v DNT Distribution Company Limited (UD 412/1993), where the Employment Appeals Tribunal held “... where words are genuinely ambiguous what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question, what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention.”

Considering Devaney, the letters of 15th November 2022 and 23rd January 2023 were clear that the Complainant was dismissed with effect from 9th November 2022.    Had the Complainant submitted his complaint in the immediate aftermath of 23rd January 2023, his complaint would have been submitted within the statutory time limit.  However he waited over 4 months after that date to submit his complaint.  This delay was not explained.

The complaint was lodged outside of the statutory six months’ time limit and I find that the complainant has not established reasonable cause to extend that time.

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.

For the reasons set out above I am not satisfied that the Complainant has shown reasonable cause that prevented the complaint from being lodged within six months of the date of dismissal and I do not therefore have jurisdiction to hear the complaint.  The complaint is not well founded.

Dated:   15th December 2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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