Complainant

Respondent

Parties

Brian O'Leary

Killarney Brewing Company Limited

Representatives

  Self Represented

Terence O'Sullivan Terence J O'Sullivan Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00047874-001

23/12/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00047874-003

23/12/2021

I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings. Both sides were given a full opportunity to present their evidence and cross examine the other party.

The Complainant appeared in person and swore an affirmation. Mr Barry Spellman, General Manager of the Respondent gave evidence on affirmation, as did Ms Antoinette O’Leary, Financial Officer. Mr Damian McCarthy of HR Buddy and the Respondent’s HR Advisor gave evidence for the Respondent on affirmation.  

The Respondent confirmed the name of company Killarney Brewing Company Limited, and the title has been amended accordingly.

The Complaint Form received by the Workplace Relations Commission on 23 December 2021. The Complainant’s complaints of constructive dismissal and payment of wages were contested by the Respondent.

There were numerous documents submitted in evidence by the Complainant and Respondent which have been considered.

A preliminary point of jurisdiction and time was raised by the Respondent at the outset of hearing which I intend to address in the first instance.

Preliminary Point

In response to the objection by the Respondent that the complaints were out of time, the Complainant stated in his evidence that he did submit his complaints within the requisite 6 month time frame on 21 December 2021 but did not receive a receipt of submission from the Workplace Relations Commission until there was a follow up phone call on 23 December 2021 after which the form was again submitted. This Complaint Form was acknowledged as being received by the WRC on 23 December 2021. Evidence of emails from the attempts to submit the form and notification of when the Complaint Form was received. It was the Complainant’s evidence that the Complaint Form “was submitted on time” and “it was not out of time” and therefore, no application was required to seek an extension of time.

Complainant’s Evidence

The Complainant commenced worked with the Respondent in May 2020 as a National Sales Manager. He had a contract of employment. It was his evidence that due to ongoing difficulties with the General Manager including issues raised as regards a bonus payment he was forced resigned from his position by email dated 11 June 2021. The Complainant gave detailed and lengthy evidence together with supporting documentation of his attempts to resolve the issues internally with Liam Healy who the Complainant describes as a shareholder of the Respondent and sat on the interview panel when he was being assessed for the role.  The Complainant gave evidence that he gave his contractual one month’s notice period, but he was not permitted to complete his notice period by the General Manager who requested that he early finish on 21 June 2021. The Complainant also claims that he was entitled to outstanding annual leave together with a bonus payment which he was not paid by the Respondent.

Preliminary Point

The Respondent raised the preliminary point of time at the outset of the hearing noting the Complainant’s last day of work was 21 June 2021 and the Complaint Form was not received by the WRC until 23 December 2021. Consequently, it is outside of the time period provided for in the legislation. It was noted in the Respondent’s summing up that the Complainant did not seek an extension of time.

Respondent’s Evidence

The evidence presented by the Respondent was the Complainant voluntarily resigned from his position in June 2021 and all payments due were discharged. Therefore, the Complainant was not dismissed but resigned. In the alternative, the Respondent gave evidence that the Complainant failed to raise his grievances internally and therefore, failed to exhaust all internal procedures before referring the complaint to the WRC.

As regards the bonus, the General Manager gave evidence that it was usually paid every quarter and as the Complainant finished on 21 June 2021, he did not complete the second quarter of 2021 and therefore, was not entitled to payment.

Preliminary Point

The Complainant was adamant that he filed his complaint to the Workplace Relations Commissions within the requisite six-month period from the date of dismissal as provided for in Section 8 (2) of the Unfair Dismissals Act 1969:      

“(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under section 17 of this Act made for the purposes of subsection (8) of this section) to a rights commissioner or the Tribunal, as the case may be, within 6 months of the date of the relevant dismissal and a copy of the notice shall be given to the employer concerned within the same period.”

The Respondent put forward the argument that he was out of time as his last day of employment on 21 June 2021 and the Complaint Form was not received by the WRC until 23 December 2021.

In order to make a decision as regards time, it is first necessary to set out the order of events as presented by the parties in their evidence from 11 June 2021 up to 21 June 2021.

The contract of employment dated 15 May 2020 requires a four-week period of notice of termination to be given by an employee.

The Complainant file his notice of resignation on 11 June 2021 by email. In response, Mr Spellman asked; “[p]lease advise as to your notice period so that we can plan a handover”, to which the Complainant replied, “I think it’s best for all if we move on and suggest doing the handover as soon as possible.”

It was the Complainant’s evidence that he was called to Mr Spellman’s office on Monday, 14 June 2021 around 11am. Mr Spellman asked about his notice period as the Company was in a busy period and the Complainant “wanted to give them as much time as possible”. The Complainant stated he was asked by Mr Spellman to give him a detailed handover, to which the Complainant agreed. Mr Spellman’s evidence was similar with addition that the pair discussed an end date of 25 June 2021 but “would agree on a lesser date as he was anxious to finish up”. It was Mr Spellman’s evidence that he said to the Complainant, “if he had everything done he could finish up his employment”.

On 21 June 2021 there was a further email exchange between the Complainant and Mr Spellman with the subject line, “Finishing Up”. Mr Spellman wrote at 12.36 enquiring if the Complainant was “working today or what is the plan?” and continues with questions regarding the handover of work. In response the Complainant states at 12.38 that he was working that day, he had everything completed and “would you like to meet today to close it off?”. Mr Spellman at 12.44 agreed to meet in advance of 1.30pm.

As agreed the pair met on site with the Complainant stating in evidence, he told Mr Spellman that there was “no ill will” as they both lived in the same town. Mr Spellman shook his hand and told him he would be paid “everything he was owed”. It was Mr Spellman’s evidence that there was never a discussion around payment in lieu of notice.

It was accepted by both parties that the Complainant did resign from his position albeit strenuously contested as to whether the Complainant was left with no option but to resign or whether he did so voluntarily. It was the Complainant’s case that he was willing to work his notice period of four weeks which would have expired on 9 July 2021. This would allow him until 8 January 2022 to file his complaint to the WRC as opposed to the Respondent’s argument that his employment ended on 21 June 2021 upon completion of the handover of work and therefore, the six-month statutory period to file a complaint to the WRC ended on 20 December 2021.

Section 7 of the Minimum Notice and Terms of Employment Act, 1973 is helpful in this regard as it refers to the right to waive notice:

“7.—(1) Nothing in this Act shall operate to prevent an employee or an employer from waiving his right to notice on any occasion or from accepting payment in lieu of notice.”

Having carefully reviewed the evidence before me and in particular the email exchanges between the Complainant and Mr Spellman on both 11 June 2021 and 21 June 2021, it is evident that neither party were concern about fulfilling the contractual notice period of four weeks. From a plain reading of the emails, the clear focus of both parties was on the handover and once completed, the parties shook hands with that being the end of their employment relationship thereby waiving the contractual notice period. For completeness where the Complainant had approximately 13 months service which requires a notice period of one week under the Minimum Notice and Terms of Employment Act, 1973 which was fulfilled.

It must be noted that the Complainant was given an opportunity to seek and extension of time but chose not to. In the circumstance I find that I have no jurisdiction to decide on this claim as it falls outside of the time period provided for under both the Unfair Dismissals Act, 1969 and the Payment of Wages Act, 1991.

CA-00047874-001

I find the Complainant was not unfairly dismissed.

CA-00047874-003

I find the complaint is not well founded.

Unfair Dismissal – Payment of Wage- Time- Jurisdiction