Complainant

Respondent

Parties

Kevin  Stapleton

Acushla Ltd. The Embassy Rooms, Lola Montez, Kennedys, Bourbon Bar

Complainant

Respondent

Anonymised Parties

Representatives

  The complainant represented himself

Terry MacNamara

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-00048780-001

24/02/2022

The claimant asserted that he was employed as Senior Stores Person with the respondent from the 6th.Sep.2002 to the 22nd.March 2021 when he alleged he was constructively dismissed. The respondent submitted that the complaint was out of time and there was no jurisdiction to hear the complaint. The respondent asserted that their interactions with the complainant were at all times reasonable and that the complainant was never dismissed, constructively or otherwise.

At the hearing of the case, the respondent’s representative made the following submission on the  Preliminary Issue of Jurisdiction:

1              In his complaint form submitted to the WRC on 24 February 2022 the complainant alleges that he was left with no choice but to resign from his position on 13 February 2021 thereby claiming that the respondent constructively dismissed him.

2              Sec 41(8) of the Workplace Relations Act 2015 sets out that “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”.

3              Sec 48(1) further states that “Where a complaint is presented to the Director General under section 41, the Director General may strike out the complaint where he or she is satisfied that the complainant has not pursued the complaint within the period of one year (or such other period as may be prescribed) immediately preceding its being struck out.”

4              The complainant filed his complaint with the Workplace Relations Commission which is date stamped as received on 24 February 2022. As per the complainant’s complaint form to the WRC his employment was terminated by his resignation to the respondent effective on 13 February 2021. Indeed, on the complainant’s complaint form to the WRC dated 24 February 2022 he confirms that he has commenced employment elsewhere (HSE) on 03 February 2021.

5              The complainant has clearly not submitted his claim within the period of 12 months beginning on the date of dismissal and therefore the respondent submits that the Adjudication officer does not have jurisdiction to hear this complaint and it should be struck out.

6              In a subsequent submission to the WRC the complainant stated,                “The Letter of Resignation attached unfortunately, due to error, did not include a confirmed Date of Exit for my resignation”.  The respondent would submit that the complainant’s resignation was from 13 February as he had already commenced work with the HSE and had no intention of fulfilling any notice requirements.

7              Even if the Adjudicator accepts the argument put forward in respect of the cessation date there is no argument made for extension of the timeframe on reasonable grounds beyond the 6 months as per WRC procedures set out in Sec 41(8) of the Workplace Relations Act 2015.

Section 8 of the Unfair Dismissals Act addresses the determination of claims for unfair dismissal. Section 8(2) sets out as follows:

(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 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, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,

and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General.

The established test for deciding if an extension should be granted for “reasonable cause” which was set out by the Labour Court in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll Determination WTC0338 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 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.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

Those tests draw 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 was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay”.

The established tests place an onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. The applicant must establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Finally, 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.

8              The argument presented, in the complainant’s letter to the WRC on 10 April 2022, alleging the delay in response to a Data Access Request by the respondent amounts to a reasonable cause justifying the significant delay in submission of the complaint form to the WRC.  A complaint to the WRC and a Data Subject Access Request are separate and unrelated procedures and there was nothing stopping the complainant from filing his complaint with the WRC within the allotted timeframe of 6 months.   The submission of 10 April 2022 does not establish reasonable cause for the delay in filing a complaint with the WRC, as required under Section 8(2)(b) of the Unfair Dismissals Act. The respondent submits that the within claim was out of time when it was presented to the WRC on 24 February 2022 and is accordingly statute barred. The following further submission on jurisdiction was submitted post hearing on the 30thJan 2023:

 The facts of the case are that.

1.       The claimant resigned with immediate effect by letter dated 13 February 2021. “Please accept this letter as my formal Resignation as Senior Cellar Supervisor for the Embassy Rooms, with immediate effect”.

2.       The resignation was accepted by Mr Kevin Quinn Jr on 18 February 2021 who responded by saying “I would like to thank you for your years of service with this company and wish you the very best in the future”.

3.       The Claimant had already commenced employment with the HSE on 03 February 2021

4.       Although the Claimant gave evidence that he did not use the services of McGovern Walsh & Co Solicitors in respect of his claim for unfair dismissal he had access to their services from 26 August 2020 to settlement of his Personal Injuries claim on 09 August 2022.

At the hearing the claimant indicated that as he did not provide an exit date in his resignation it was incumbent on the respondent to do so. Firstly, the respondent submits that the words ‘immediate effect’ has a straightforward meaning and the date of termination was 13 February 2021.

In the initial hearing on 23 January 2023 the respondent referred to Stamp V McGrath UD 12432/1983 which held that the reference to date of dismissal in Section 1(b) of the Unfair Dismissals Act 1977 – 2015 applied only to a dismissal by an employer and not where an employee resigns. In their determination the EAT held that the employee was not able to count their contractual notice period to bring the claim within the six-month limitation.  The respondent submits that this applies in this instance, particularly where the claimant resigned ‘with immediate effect.’

The Respondent respectfully requests that the Adjudicator deal with the preliminary matter first and foremost and reach a conclusion on same before deciding whether the substantive complaint under the Unfair Dismissals Acts should be heard. There is jurisprudence which suggests that the Adjudicator is precluded by law from holding a substantive hearing until a decision on the preliminary matter is reached.  

In Mary Sheehy v Most Reverend James MoriartyUD1264/2008 the Tribunal held that ‘’the Tribunal was set up under statute by the Oireachtas and did not have the authority based on constitutional or natural law and justice principles to conduct a hearing’’ where ‘’the claims were not instituted within the time periods set out in the legislation’’.

Equally, in the case of Guerin v SR Technics Ireland Limited UD969/2009, the Employment Appeals Tribunal was asked to make a decision on a preliminary matter first before moving to hearing the substantive case.  Given the significant preliminary points raised, the Tribunal moved to hear the preliminary matter first and reach a decision on same.

In the case of Bus Eireann v SIPTU PTD8/2004 the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case ‘where it could lead to considerable savings in both time and expense’ and where the point was ‘a question of pure law where no evidence was needed and where no further information was required’.

Equally in the case of Donal Gillespie and Donegal Meat Processors UD/20/135 the Labour Court dealt with the matter by expressing the view that in asking for the substantive issue and the jurisdictional issue to be dealt with together was “akin to asking the court to exercise its jurisdiction before it determines whether or not it has jurisdiction in the first instance.  In determining the issue of jurisdiction, the Court must confine itself to the nature of the termination without enquiring into the fairness or otherwise of the decision itself, having regard to submissions made on the preliminary issue by both parties, the documents referred to therein and the relevant statutory provisions.  Only if the court determines that it has jurisdiction to do so can it go on to consider the fairness or otherwise of the dismissal itself”.  Coy attached at Appendix 1.

Also in Eddie Lyons and Servecentric Ltd UD/22/52 the Court found that “the within claim was out of time when it was presented to the WRC on 11 May 2021 and is accordingly statute barred the court determines that it has no jurisdiction to hear the substantive matter”. Copy attached at Appendix 2.

Accordingly, the Respondent asks that the Adjudication Officer makes a determination on the issue of jurisdiction having regard to submissions made on the preliminary issue by both parties before proceeding further.

The respondent’s representative asserted at the hearing that as far as the employer was concerned the file with the Data Protection Commissioner was now closed and this had been confirmed in writing by Ms. O L from the DPC office. The representative referenced the statement made by the complainant at the hearing that he had furnished his letter of resignation to the respondent on the 13th Feb 2021. The complainant was pursuing a parallel claim to PIAB since April 2020 and consequently had been in receipt of legal advice on the matter. In his letter of resignation the complainant stated “with immediate effect “and contained no reference to a notice period. It was asserted that the Revenue timeline was an administrative matter and not determinative of the date of dismissal. The representative referred to Stamp V McGrath 12432/1983 and submitted that the case held that reference to date of dismissal in Section1(b) of the Act only applied to a dismissal by an employer and not where an employee resigns. It was submitted that the EAT had held that the employee was not able to count their contractual notice period to bring the claim within the 6 month limitation period. It was contended that this applied in the instant case, particularly where the complainant resigned with immediate effect.

In a post hearing submission on the preliminary matter of jurisdiction the complainant set out his response as follows to the respondent’s challenge on the grounds of jurisdiction.

 1. “The claimant resigned with immediate effect by letter dated 13 February 2021”. As shown in previous submissions and evidence given, under oath, at hearing, there is clearly no date of exit contained within the letter of resignation, also the date registered by Acushla Ltds management to Revenue commissioner office regarding cessation of my role was 12/03/21 clearly shown on an official Revenue Document. To confirm the letter of resignation was clearly not “dated”.

 2. “The resignation was accepted by Mr Kevin Quinn Jnr on 18th February 2021”. At no point was the resignation officially accepted by the Respondent. By submitted quote, was acknowledged, but no clear defined acceptance or date of acceptance was given by Acushla Ltd. Failure of management in the following points of standard procedures when dealing with a employee resignation. - Failure to confirm date of exit - Failure to confirm signed resignation document, (similar to demanding signature on medical certificate previously) - Failure to confirm acceptance of resignation - Failure to respond within the delayed period 13th-18t February (5day period) - Failure to notify of required notice period required if in fact the role was active during level 5 COVID-19 restrictions in place at that time. Notice was waved under Section 8 Minimum Notice and Terms of Employment Act, 1973, re. misconduct by the other party.

 The above mentioned are clear failure of the respondent Mr Kevin Quinn Jnr in following basic procedures when in receipt of resignation notification from an employee. In the lack of confirming the above mentioned points, and Failure to confirm the reasons for resignation mentioned within both the email of which it was attached and the resignation letter itself, an email which also included the highlighted points of the defamatory reference submitted to the HSE, after a withholding period in an attempt to prevent gaining employment, employment which was in line with advised medical advice, unanswered , implied accepted success in the campaign followed by Acushla Ltds manager Mr Kevin Quinn Jnr in an attempt to remove myself from the position after victimisation for highlighted GDPR and health and safety issues within the company to management, which lead to injuries sustained in the fall 10/12/19 and clear additional attempts for further injury to be highlighted during hearing.

 3. “The Claimant had already commenced employment with the HSE on 03rd February 2021”. As mentioned in complaint and submission as due to financial circumstances the injury benefit payments were unable to meet demands of the responsibilities in place, and no assistance from Acushla Ltd. (despite a verbal agreement with Mr Quinn previously stating that the company would be in a position to aid financially if I required time off for recovery of the injuries caused by the negligence of the company. Despite also another employee on medical certified leave receiving full pay previously to my knowledge, evidence available) despite S.I. No.208/2012 Employment Equality Act 1998 (Code of practice) (Harassment) order 2012, part 3.

Under medical assessment by both HSE medical and GP assessment I was cleared for light duties, light duties as previously advised in a copy of correspondence between treating Consultant and GP regarding status of the injuries sustained 10/12/19, given to Mr Quinn during 19 th August 2020 meeting, employment with the HSE was in line with level 5 COVID-19 restrictions in place at the time, at the time my contracted role within Acushla Ltd was inactive due to restrictions in place (level 5). Had the role been active, travelling restrictions to 5km were in place, and as previous Mr Quinn would refuse to provide evidence of active employment for the purpose of travel, leaving me open to court imposed fines for breach of travelling restrictions. Employee insurance within the company under forced closure were in question, Mr Quinn refused to confirm issues raised in an email previous to resignation. Contracted role within Acushla Ltd was clearly inactive at the time due to COVID-19 level 5 restrictions when I engaged in temporary Covid 19 contracted employment with the HSE during the second wave of COVID-19 during the pandemic.

 4. “Although the claimant gave evidence that he did not use the services of McGovern and Walsh & Co. Solicitors in respect of his claim for Unfair Dismissal, he had access to their services from 26 August 2020 to settlement of his personal injury claim on 09 August 2022”. The previous claim by the respondents representatives to the adjudication officer in this case, I find as false and unfounded as a claim I am attempting to deceive the adjudication officer in evidence given, under oath, at the hearing 23/1/23, I request the evidence of this unfounded, unproven, false claim to be submitted to be proven.

As already submitted under oath, Mr G McGoverns sole involvement was the submitted PIAB application, with intention to follow regarding negligence case, myself and Mr McGovern parted ways shortly after PIAB assessment was completed, gradual/constructive/unfair dismissal case was never discussed, the timeframe of access to services was clearly extended by various levels and periods of office closures and medical assessment delays, due to COVID-19 restrictions imposed by government, as I am sure all involved in this adjudication process are fully aware of the impact COVID-19 has had on any form of litigation timeframe. Despite the above mentioned the respondents representatives fail to clarify what if any bearing this statement has on the preliminary matter in question, I am self-represented as was clear at the recent Adjudication hearing from my lack of knowledge of the proceedings and lack of legal counsel seated beside me.

 The only other legal assistance sought by myself was from a data protection specialist within Lavelle Partnership based in Dublin/Galway regarding the personal data breaches mentioned within the complaint, as of yet, only in advisory capacity and currently awaiting confirmation of DPC investigation before following Acushla Ltds Data controller.

 In the following paragraph the respondent claims the words “Immediate effect “has a straightforward meaning and date of termination (not resignation?) Was 13/2/21. If the respondent had followed standard procedures when processing an employees resignation and confirmed date of exit “immediate effect “would be straightforward, Mr Quinn clearly failed to do so, therefore there is no confirmed date to base “immediate effect “from. Respondent also now states 13/02/21 as date of “termination” yet registered 12/03/21 with Revenue as stated on an official Revenue certificate.

In my own submission regarding preliminary matter raised by the respondents representatives I offer my original submission regarding application for extension in this complaint already given during the previous hearing under oath, and copy of the original email dated 13/02/21 which details issues surrounding my eventual resignation and the respondents behaviour to that point.

 On submission of my original complaint to the WRC via the complaint form I was advised that the complaint submitted would be heard under Section 8 of the Unfair Dismissal Act, 1977, as the basis of the complaint, as I am aware of the use and reason for case law in the assessment of a complaint at hearing, I would question the respondents representatives over saturation of similar in basic detail, but not the same as the issues within this complaint case law, and deal with the actual facts of this complaint in the interest of fair hearing for both parties.

 The complainant made the following additional submission on granting an extension of time:

In regard to the issues raised by the respondents’ representatives, the issues involving the official date of resignation/cessation from my position with Acushla Ltd, and the claim against validity of the complaint under governing time restrictions on submission of complaints to the WRC, I offer the following points for your consideration in your decision whether to refuse or grant extension in this case.

Issue of resignation date

As regards my cessation/resignation date from my position with Acushla Ltd in my understanding, is the final date submitted to Revenue by my previous employer, this date has been ultimately confirmed by the cessation certificate (formerly P45) issued direct from Revenue which I have submitted, 12/03/2021 is the date which Acushla Ltd officially registered with Revenue as my cessation/resignation/date of exit.

The date 13/02/2021 highlighted by the respondent is the date of the email of which it was attached and does not relate to a date of exit.

The omission of date of exit or registered date on the resignation letter was genuinely in error as due to my lengthy employment with Acushla Ltd I simply didn’t know how a resignation letter was to be presented, Despite this I do believe Acushla Ltd management was required to confirm the data of exit at the time of realising the absence of such a key point within the letter itself, and failed to do so. If Acushla Ltd management had in fact accepted 13/02/2021 at the time why was it not the date registered with Revenue?

Conclusion.

Inline with the Revenue cessation certificate submitted, my official cessation/resignation/date of exit from my role with Acushla Ltd, as submitted/registered with Revenue by Mr Kevin Quinn Jnr General Manager of Acushla Ltd is clearly 12/03/2021. Complaint to WRC was within 12month extended limit, if granted by Adjudication Officer in this case.

Issue of delay in submission of complaint to WRC

As regards my delay in submitting complaint to WRC, as previously advised to the respondents representative IBEC, was a direct result of Mr Kevin Quinn Jnrs refusal of full right of access in regard to the data subject access request submitted to the company which despite my rights under GDPR is still to this date unfulfilled some 600+ days after breach of allowed response timeframe of 30 days. Which is a clear breach of my, active at time of submission, contract of employment (Data Protection legislation policy 2017 Ed employees handbook). An additional SAR was lodged with Acushla Ltd as recent as 23/11/2022 regarding additional deliberate data breach by management (please see folder Mailchimp data breach) and is now being investigated by DPC for non-response.

In the original SAR I requested a number of documents which would be included in the complaint, which was eventually submitted, for example but not limited to.

• Previous signed contract of employment with addition to terms signed (clearly required for WRC complaint to prove any and all contract breaches)

• Incident reports for accidents, fall 101219, light fitting electrocution (required as evidence for various complaint (WRC) breach of contract and future court action)

• Copy of worked hours via biometric clocking system (working time act breaches, breach of contract (WRC))

• Copies of signed agreements for withholding of renumeration in regard to 5% wage reduction during recession period 2008, failure of payment of public holiday renumeration 2011-17 (failure of renumeration (WRC complaint)

As regards the above mentioned, only the copy of worked hours has been recovered, all other examples have falsely been claimed against or held over false legal privilege, and later found not to have existed in the first instance (incident reports) in a clear attempt to drag out various statues of limitations and various complaint time frames (WRC), DPC investigation still to date ongoing. (All the above points mentioned are fully backed up with extensive volume of email correspondence available on request)

Conclusion

As not to waste the Workplace Relations time submitting a complaint which was not founded on available evidence, which would have been seen as a false claim with no evidence to prove my claims, I submitted the SAR to Acushla Ltd, expecting to receive access within 30 days under GDPR, to the evidence required to prove my claims in a submitted complaint to the WRC, Mr Kevin Quinn Jnr Data Controller for Acushla Ltd, clearly and maliciously withheld data and made false claims regarding requested data to prevent submission of various complaints, DPC followed up complaint, some files still outstanding.

Final conclusion

With the above mentioned and explanation to the issues raised by the respondents representative answered, I now offer these statements to the Adjudication Officer in the hope of granting the time extension for submission of my complaint and proceeding with Adjudication hearing.

The complainant also   submitted a copy of an email attached to his letter of resignation – the email was dated the 13th.Feb.2021 .In  the email , the complainant takes issue with the reference the respondent submitted to the HSE and contended that he had no option but to resign. He also states the following with respect to notice :

“As regards working notice for my position, unfortunately due to employee insurance concerns which were left unanswered by management in previous emails and unsafe working conditions involved in my role, coupled with my debilitating long-term injuries received in the previous accident 10/12/19 , I am unable to work the notice required”.

I have reviewed the evidence presented at the hearing and taken account of the written submissions on jurisdiction and the authorities relied upon.

The claimant’s complaint was received by the WRC on the 24th.Feb. 2022. It is not disputed that the complainant submitted his resignation with immediate effect on the 13th.February 2021 and that a further email was furnished that day which referenced as follows : “As regards working notice for my position , unfortunately due to employee insurance concerns which were left unanswered by management in previous emails and unsafe working conditions involved in my role , coupled with my debilitating long-term injuries received in the previous accident 10/12/19 , I am unable to work the notice required”.

The text of the complainant’s letter of resignation issued on the 13th February is as set out below:

“To whom it may concern.

Please accept this letter as my formal Resignation as Senior Cellar Supervisor for the Embassy Rooms with immediate effect.

Unfortunately, due to injuries sustained in the accident 10/12/19, while under instruction of management, for duties not under contract , under medical advice I am no longer to carry out the demanding heavy goods handling required for such a role.

I have enjoyed working in the Embassy Rooms, Lolas , Toffs , Kennedys , Bourbon Bar , Belfy and with all the staff I have worked with throughout the years , and wish you all , and the company the best in the future .

Best wishes, Kevin Stapleton”.

The respondent replied on the 18th.Feb. 2021 to the following effect:

“It is with regret that I note your letter of resignation from Acushla Ltd., received herein, particularly when we were only discussing your return to work in the recent past.

I would like to take this opportunity to thank you for your years of service with the company and wish you the very best in the future.

Best regards,

Kevin “.

I accept the respondent’s representative’s contention that the matter of notice in the case of constructive dismissal is distinguishable from a dismissal by an employer and that this was found by the EAT in UD1234/1983 – Robert Stamp v James McGrath. I further accept the contention by the respondent’s representative that he has presented case law that supports his contention that I am precluded from holding a substantive hearing until a decision on the preliminary matter is reached. I find that the relatively recent case of Donal Gillespie and Donegal Meat Processors UD/20/135 is instructive in this regard. I do not find that the claimant’s arguments that documentation from Revenue is determinative of the date of dismissal persuasive. I do not find merit in the complainant’s assertions that he did not know how a resignation letter could be presented or indeed that the respondent was required to confirm the date of exit given the complainant’s reference to immediate effect in his resignation letter.  The complainant’s  resignation – with immediate effect  was submitted on  the 13th.February 2021 and this was acknowledged by the respondent on the 18th.February 2021.In the circumstances , I find that the 13th.February 2021 was the date of dismissal and consequently the complaint is out of time given that it was lodged with the WRC on the 24th.February 2022.It was lodged in excess of 12 months from the date of dismissal and consequently I have no jurisdiction to investigate the complaint.

I do not have jurisdiction to investigate this complaint as it is out of time.

Out of time – constructive dismissal