FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES: AER LINGUS (REPRESENTED BY ARTHUR COX SOLICITORS) - AND - KEVIN O'BEIRNE DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00032155 CA-00042609-002 This is an appeal by Mr Kevin O’Beirne against the decision of an Adjudicator Officer (ADJ-00032155 – CA-00042609-002, dated 10 August 2022) under the Unfair Dismissals Act 1977 (“the Act”). The Adjudication Officer held that he did not have jurisdiction to hear the complaint. A Notice of Appeal was received by the Labour Court on 17 August 2022 and a hearing of the Court held on 25 January 2023. For ease of reference the parties are given the same designation as they had at first instance. Hence Mr O’Beirne is referred to as “the Complainant” and Aer Lingus is referred to as “the Respondent”. Preliminary Issues Two preliminary matters were raised with the Court addressing its jurisdiction to hear the appeal, relating to (i) time limits, and (ii) the status of a compromise agreement entered into between the parties. Mr Seamus Given, Solicitor, on behalf of the Respondent, submitted that the complaint was not properly before the Court as it was out of time. He submitted that the complaint was lodged with the Workplace Relations Commission on 19 February 2021 almost three years after the Complainant’s employment ended on 4 May 2018. As the alleged complaint occurred outside the cognisable time period encompassed by the Act, it is out of time and statute barred. Furthermore, the Complainant entered into a compromise agreement with the Respondent in consideration of significant ex-gratia severance terms. The Complainant was legally represented when the settlement terms were negotiated. He was given every opportunity to consult with his legal advisors in advance of signing the Agreement. Under the terms of the Agreement the Complainant agreed to waive his right to bring any claims against the Respondent arising from his employment or the termination of employment, including any claims under, inter alia, the Unfair Dismissals Act. The Complainant, who was unrepresented at the hearing, accepted that his complaint was lodged outside the timeframe specified under the Act. The Complainant submitted that he felt conned into signing the compromise agreement in 2018. He had signed the agreement on the understanding that if he did not sign it the voluntary severance terms which were on offer to him, and other employees would be withdrawn. He said that he later learned through a chance meeting with a former colleague that the voluntary severance terms had not been withdrawn. Had he been aware that the severance terms remained available he would not have signed the compromise agreement at that time. The Complainant accepted that he signed a full and final settlement agreement that prevented him from taking further legal actions, and that he had the benefit of independent legal advice before signing that agreement. RELEVANT LAW: Section 8 of the Unfair Dismissals Act addresses the determination of claims for unfair dismissal. Section 8(2) sets out as follows:
DELIBERATION A failure on the part of a Complainant to present a complaint in time deprives the Adjudication Officer, and this Court on appeal, of jurisdiction to hear the claim. Section 8(2) of the Act allows a claim to be lodged within 6 months of the date of dismissal , or within 12 months of the date of dismissal, where the lodging of a claim within six months was prevented due to reasonable cause. No application was made by the Complainant for an extension of time due to a reasonable cause. There is no dispute about the facts that have given rise to the preliminary matters before the Court. It was accepted that, taking account of the Complainant’s entitlement to eight weeks’ notice, his date of dismissal for the purposes of the Act was 19 June 2018, which was eight weeks after 24 April 2018 when a letter issued to him confirming his termination details. Therefore, the cognisable period for the purpose of considering a complaint under the Act is the period from 19 June 2018 to 18 December 2018. In the within appeal a complaint was lodged with the WRC on 19 February 2021, which is clearly outside the time limits set out at Section 8(2)(a) and 8(2)(b) of the Act. As a result the Court is satisfied that the Complainant’s original complaint was presented to the Workplace Relations Commission out of time and the within appeal is statute barred. DETERMINATION: In these circumstances, it is not necessary for the Court to determine the second preliminary matter relating to the status of the compromise agreement entered into between the parties. The appeal is disallowed, and the Decision of the Adjudication Officer is affirmed. The Court so Determines.
NOTE Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |
