Complainant

Respondent

Parties

Irene  Finnegan

Harcourt Dental Clinic

Representatives

Liam R Fitzgerald Liam R Fitzgerald Solicitors

Peter Mcinnes McInnes, Dunne Murphy LLP, Solicitors.

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-00053519-001

02/11/2022

The Complainant was employed by the Respondent as a Practice Manager. Employment commenced on 16th March 2020 and ended on 29th April 2022.

This complaint was received by the Workplace Relations Commission on 2nd November 2022.

The hearing of the complaint took place on 6th June 2023 in the Workplace Relations Commission, Dublin.

In response to questions raised in relation to the preliminary issue the Complainant said the following.

The Complainant informed the hearing that after her resignation she could no longer afford the rental accommodation she had lived in for a number of years. She had to move home with her parents while she was looking for alternative less expensive accommodation. This took some time.

The Complainant also informed the hearing that in September 2022 she commenced a course of further education and this was very time consuming between attending classes and completing the course assignments in the evening time.

Preliminary Issue.

On Friday, 29 April 2022, the Complainant emailed the Respondent and tendered her resignation with immediate effect. The Complainant’s email is in unequivocal terms. It states as follows:

“Dear Spencer and Kevin,

I am writing to confirm I will be resigning from my role as Practice Manager of Harcourt Dental Clinic with immediate effect.

I would like it to be known I’m resigning due to a breach of contract. I consider the withholding of my payment information, treating me differently to other employees and the refusal to support my position at the clinic to be in breach of my contract and I believe this to be a constructive dismissal case against me in my role.

I raised a grievance about these issues throughout my employment which wasn’t satisfactory in resolving this matter. You created an unwelcoming environment to return to – deregistering my access to registered devices essential to do my role without any correspondence about doing so.

Please issue a cessation of contract to revenue, forwarding all outstanding payments.

Regards,

Irene Finnegan.”

Upon receipt of the Complainant’s email, the Respondent immediately sought advice from its HR consultant. This was the first time the Complainant had raised any written complaint concerning her employment. The Respondent was confused by the Complainant’s assertion that she had “raised a grievance about these issues throughout her employment” as the Respondent had never received any grievance from the Complainant.

Following advice from the Respondent’s HR consultant, the Respondent replied to the Complainant on Wednesday, 4 May 2022 at 17:08 and informed her that it had never received any grievance from her, that it wanted to resolve the issues with her if she so wished, that if she wished to resolve the issues to withdraw her resignation and to file any grievances that she might have through the Respondent’s grievance procedure.

The Complainant responded to the Respondent’s email later that night at 21:53 and, again in unequivocal terms, stated that “there will be no withdrawal of resignation”.

The Respondent replied to the Complainant on Thursday 5 May 2022 at 09:00 noting the contents of the Complainant’s previous email.

The Respondent received no further communication from the Complainant until 20 December 2022 when, through correspondence sent by the WRC, it was informed that the Complainant had submitted a claim to the WRC alleging constructive dismissal on 2 November 2022.

On 6 April 2023, McInnes Dunne Murphy LLP (“MCDM”), solicitors for the Respondent, wrote to the Complainant’s solicitors to advise them of the preliminary issue as well as requesting particulars relating to the Complainant’s attempts to mitigate her loss.

On 11 April 2023, the Complainant’s solicitors wrote to MCDM. The Complainant’s solicitors failed to address the preliminary issue of the Complainant’s claim being statute barred. Rather, the correspondence just states “Thank you for your correspondence, I note the content therein. My client has set out her claim with the WRC”.

On 10 April 2023, MCDM wrote to the Complainant’s solicitors again pointing out that the complaint was statute barred. MCDM further reminded the Complainant’s solicitors that the burden of proof rests with the Complainant as well as the Complainant’s obligation to provide the Respondent with a copy of her submissions to the WRC in order to allow the Respondent to prepare replying submissions. No reply has been received.

Legal submission

It is respectfully submitted that the Adjudication Officer has no jurisdiction to adjudicate on the complaint as it is statute barred. The Complainant alleges that she was unfairly dismissed by means of constructive dismissal. The Complainant, in no uncertain terms, resigned her employment “with immediate effect” on 29 April 2022. She confirmed in writing on 4 May 2022 that there would be no “withdrawal” of her very clear resignation tendered on 29 April 2022.

Section 8(2)(a) of the UD Acts provides that “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 subsection (17) of section 41 of the Act of 2015) to the Director General – (a) within the period of 6 months beginning on the date of the relevant dismissal (…)” (emphasis added).

In the circumstances, it is submitted that the relevant time period for the Complainant to submit her complaint was between 29 April 2022 and 28 October 2022. The complaint was not submitted to the Workplace Relations Commission until 2 November 2022.

Section 8(2)(b) of the UD Acts provides the test for extending the six-month time period set out in section 8(2)(a) of the UD Acts. The test is whether or not the failure to present the complaint within the initial period was “due to reasonable cause”. In Salesforce.com –v- Alli Leech Determination, EDA 1615, the Labour Court set out in detail the legal principles to establish whether reasonable cause has been shown for an extension of time. The Court stated,

“the established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this court in Labour Court determination DWT0338 Cementation Skanska –v- Carroll.”

Here, the test was set out in the following terms: -

“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 of which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the fact and circumstances know 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 the circumstances not been present, he would have initiated the claim on time”.

In that case, and in subsequent cases in which the question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should have been enlarged for “good reason” in judicial review proceedings pursuant to Order 84 Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance –v- CPSU and Others, 2007 18ELR 36. The test formulated in Cementation Skanska –v- Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell –v- Dun Laoghaire Corporation, 1991 ILRM 30. Here Costello J (as he then was) stated as follows: -

“the phrase “good reasons” is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she were justified in delaying the institution of proceedings. What the Plaintiff has to show (and I think the onus under Order 84 Rule 21 is on the Plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. It is clear from the authorities that the test places the onus on the Applicant on an extension of time to identify the reason for the delay in and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus on the Applicant to establish a causal link between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the court must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a complaint that those factors were the actual cause of a delay. Finally, while the established test included a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account”.

In particular, as was pointed out by Costello J in the passage quoted above, a court should not extend a statutory time limit merely because the Applicant subjectively believed that he or she was justified in delaying the institution of proceedings.

In O’Donnell, the Court found that the complainant had failed to establish a causal link between the factors relied upon by her and the delay in presenting the claim and, accordingly, the Court held that the complainant had failed to adequately explain the delay and provide a justifiable excuse for the delay.

In the present case, the Complainant has failed to adduce any evidence of reasonable cause at all. The Complainant stated on 29 April 2022 when she tendered her resignation “with immediate effect” that she believed she had been constructively dismissed. She restated her decision on 4 May 2022. In her Complaint Form, the Complainant states that she had been legally advised from 22 April 2022. The Complainant never raised an internal grievance and stopped all communication with the Respondent following 4 May 2022. Accordingly, it is respectfully submitted that there was no reasonable excuse for the Complainant’s delay in submitting a complaint to the Workplace Relations Commission which, by her own admission, she believed was actionable over six months prior following the receipt of legal advice.

Despite the Complainant’s clear communication of her resignation on 29 April 2022 and reiteration of same on 4 May 2022, the Respondent notes that the Complainant’s Complaint Form instead alleges a dismissal date of 5 May 2022. It is respectfully submitted that the Complainant’s claim in this regard is disingenuous and self-serving. The Respondent also notes that the Complainant has not advanced any reasonable cause whatsoever as to why she might now be asserting a different resignation date when she unequivocally stated on two separate occasions that her resignation took effect from 29 April 2022.

In “Redmond on Dismissal Law in Ireland”, Second Edition, the author, Desmond Ryan BL, states: “In general, a person is dismissed when the employer informs him clearly and unequivocally that contract is at an end or if the circumstances leading to a dismissal was intended or may reasonably be inferred as having been intended…dismissal requires communication to the employee to be effective.”

The Complainant alleges a case of constructive dismissal. Accordingly, the date of dismissal according to the above test will be the date the employee informs the employer clearly and unequivocally that the contract is at an end.

The Complainant clearly and unequivocally informed the Respondent that she was resigning under the belief that she had been constructively dismissed on 29 April 2022. It is clear from the Respondent’s response to the Complainant on 4 May 2022 that it had accepted that the Complainant had validly ended her employment on 29 April 2022 as the Respondent states that, if the Complainant would like her job back and instead to raise a grievance in relation to her issues, she would “need to withdraw [her] resignation”. The Complainant then clearly and equivocally confirmed that her resignation from 29 April 2022 would not be withdrawn. Accordingly, the date of dismissal/resignation on 29 April 2022 is well- established.

The fact that the Respondent only communicated the Complainant’s resignation to payroll following a very clear repetition to the Respondent that she would not withdraw her resignation at 21:53 on 4 May 2022 does not change the date of the Complainant’s resignation “with immediate effect” on 29 April 2022. The fact that the Respondent’s payroll, by means of an accounting oversight, ended up paying the Complainant until 5 May 2022, the date that the dismissal was communicated to payroll, does not change the date of the Complainant’s resignation “with immediate effect” on 29 April 2022.

As a result of the foregoing, it is respectfully submitted that the Adjudication Officer does not have jurisdiction to hear the claim as it is statute barred and the Complainant has failed to provide any reasons to attempt to satisfy the test for reasonable cause to extend the time.

Representative for the Respondent has clearly pointed out Section 8(2)(a) of the UD Acts provides that “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 subsection (17) of section 41 of the Act of 2015) to the Director General – (a) within the period of 6 months beginning on the date of the relevant dismissal (…)”

Section 17 (8) of the Act of 2015 reads as follows:

“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 the period was due to reasonable cause”.

In the instant case the Complainant stated that after her resignation she had to give up her rental accommodation and move home to her parents while she looked for alternative accommodation. She also informed the hearing that she had enrolled on an educational course and was busy with course work.

I note that the Complainant had the benefit of legal advice from her solicitor both before and after her resignation.

I do not believe that reasonable cause exists to extend the time limit of 6 months and have no alternative but to accept the argument presented by the Respondent’s representative. I have no jurisdiction to hear the complaint as presented under section 8 of the Unfair Dismissals Act, 1977.

I do not believe that reasonable cause exists to extend the time limit of 6 months and have no alternative but to accept the argument presented by the Respondent’s representative. I have no jurisdiction to hear the complaint as presented under section 8 of the Unfair Dismissals Act, 1977.

Unfair Dismissals Act, 1977; Time Limits.