Complainant

Respondent

Parties

Arturs  Cehanovics

Lidl Ireland Gmbh

Representatives

Larkin Tynan Nohilly Solicitors

Scott Jevons

Employee Relations Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00048013-001

06/01/2022

The Complainant commenced working for the Respondent as a warehouse operative on the 9 March 2018. His employment was terminated on the 5 June 2021.  His monthly gross salary was €2,500.

Following a disciplinary procedure, his employment was terminated by letter dated 5 June 2021.  The effective date of termination was given as the 5 June 2021. He commenced an appeal of that decision on 12 June 2021.

The Complainant lodged his claim with the WRC on 6 January 2022.  He set out his date of dismissal as the 12 July 2021.

The Respondent made a preliminary submission that the Complainant had brought his complaint outside of the statutory time frame. The Respondent disputed that the Complainant’s date of dismissal was 12 July 2021. It submitted that the date of dismissal was 5 June 2021.

The Complainant noted that the Respondents correspondence post 5 June 2021 referred to the Complainant having "fellow employees" and having a "work colleague". He submitted that it was reasonable in those circumstances to conclude that his termination of employment had been stayed pending the hearing of his appeal.  He 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. He noted that the length of delay (being one month which included the Christmas break) and that English was not his native language. He referred to the fact that the Respondent was not prejudiced whatsoever in the delay in bringing the case and pointed out that it had failed to deliver its own hearing written submissions within the timeframe required by the WRC.

The Respondent opposed the Complainant's application for an extension of time.

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

As regards redress, the Complainant advised me that his preferred outcome if I was to find in his favour was compensation. He explained that he had been unemployed since he was dismissed and in receipt of a social welfare unemployment payment for that period. He explained he had a difficult year and he had been looking after his grandmother who died. He said he had no time to look for work and he did not attend any job interviews. He confirmed that he hadn't approached anyone looking for work.  This was in part due to the Covid situation. He was explained that he was suffering from stress and his head was not in the right place.

At the hearing I drew the Complainants attention to section 7(1)(c)(ii) Unfair Dismissal Act 1977 as amended (redress for unfair dismissal) and his requirement to mitigate his loss section 7 (2) (c) and the fact that there was nearly full employment in the country. The Complainant was unable to provide a list of efforts he carried out to seek replacement employment.

The Respondent explained that on the 24 December 2020, the Complainant uploaded a photo onto his own Instagram page which showed the Complainant on holiday in Dubai which was not a country within the Green list of countries during the strict travel restrictions arising from the Covid pandemic. The photo showed the Complainant by the sea with palm trees in the background and tagged the location as Dubai.

The Complainant was on sick leave during this period.  He was absent for a period of three weeks.

On his return from sick leave, a return-to-work meeting was held with the Complainant and his line manager. At the meeting, his line manager informed him that he had received numerous complaints from colleagues on the warehouse floor that he had travelled to Dubai during his sick leave on a sun holiday. This was when the country was on level 5 lockdown (which was the strictest conditions required to combat the pandemic).

The Complainant denied he had travelled to Dubai and said he could tag a photo of himself in any country he wanted to. He said that the photo did not mean that he was there.

Due to the severity of the matter, an investigation was launched by the Respondent. Four allegations were put to him.

An investigation meeting was held by phone on the 9 February 2021. The Complainant denied he was abroad while he was on sick leave with back pain. The Complainant accepted that photo was of him. He said that "I have not been abroad on 24 December 2020. The picture is not relevant".

The Complainant was asked to provide evidence as to when the picture was taken. He refused to provide this. He simply repeated that it was "not relevant".

A disciplinary process was commenced on the 19 February 2021. On 5 June 2021 the disciplinary outcome letter issued indicating dismissal by reason of gross misconduct.

On the 12 June 2021 the Complainant appealed the decision to terminate his employment. Ultimately the points of appeal were not upheld and the decision to dismiss the Complainant for reasons of gross misconduct were found to be justified and proportionate.

The Complainant's case was that he was dismissed in breach of fair procedures.

He submitted that the photograph uploaded onto social media did not indicate or prove that he travelled to Dubai in December 2020. The Complainant denied that he had done so throughout the investigation and disciplinary process.

The Complainant was on sick leave at the time and had submitted sick certificates from his GP to cover his absence from the workplace. He had back pain at the time because of any injury at a gym.

The Complainant argued that the onus of proof was on the Respondent to prove that he had travelled outside of the country.

The Complainant advanced that questioning him as to his travel arrangements during the entire year amounted to a breach of his privacy.

He maintained that a biased investigation was conducted against him which prejudiced his rights and explained that he was not under any Garda criminal investigation.

He submitted that the Respondent omitted to obtain statements from crucial witnesses and relied on hearsay evidence. The identity of the witnesses who complained about him were not made known to him.

He requested that I have regard to the procedures followed by the Respondent and his entitlement to natural and constitutional justice.

The definition of dismissal is set out in Section 1 the Unfair Dismissal Act 1977 (as amended) as

“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

I reviewed the Respondent's letter of 5 June 2021.   It set out

"Accordingly, I have made the decision to end the employment relationship in line with Section 10.4 of the Employee Handbook. Your contract of employment will be terminated with effect from today, Saturday, 5 June 2021.

The dismissal is made on the grounds of gross misconduct therefore, no payment of notice will be made to you".

I have reviewed the Complainant's email setting out the grounds of his appeal dated 12 June 2021 and subsequent correspondence with and from the Respondent.

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 that there is a lack of clarity or ambiguity as to the implications of the letter of dismissal which issued on 5 June 2021. 

Desmond Ryan in his book Redmond on the Dismissal (third edition) reviews the approach of the EAT in Ryan and 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 5 June 2021.

The Complainant lodged his complaint on 9 January 2022 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 12 June 2021.  The claim lodged with the WRC on 6 January 2022 contained large similarities with the appeal filed on the 12 June 2021. 

I have not been satisfied that there was reasonable cause to justify the delay in lodging his Complaint in time. The Complainant had engaged a solicitor within the requisite six months’ time frame of his dismissal.  In June 2021 he was able to substantiate his complaint.

I therefore, find that the Complainant’s explanation for not referring his complaint until over seven months after the date of his 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.

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