FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES: HEALTH SERVICE EXECUTIVE (REPRESENTED BY COMYN KELLEHER TOBIN LLP SOLICITORS) - AND - MS MARGARET CURRAN DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00031485, CA-00041479-001 DETERMINATION: Ms. Curran, ‘the Complainant’, started work for the legal predecessor of the Health Service Executive, ‘the Respondent’, in 2003 on a contract for service’ as an Art Therapist. She believes that from January 2011, her relationship was that of a ‘contract of service’. This is disputed by the Respondent. The Complainant was suspended by the Respondent on 7 August 2014. She severed her employment relationship formally with the Respondent on 4 June 2015. On 8 December 2020, the Complainant lodged a complaint with the Workplace Relations Commission, ‘WRC’, under the Unfair Dismissals Act 1977-2015, ‘the Act’ that she had been constructively dismissed. An Adjudication Officer, ‘AO’ decided that the complaint was submitted out of time and was statute barred. The Complainant appealed to this Court. The Court identified that there were two preliminary issues that it had to determine before it could establish if it had jurisdiction to hear the substantive appeal. The Court had to determine if the appeal met the requirements on time limits for such appeals and if the Complainant was, at the time of the alleged constructive dismissal, an employee of the Respondent within the meaning of the Act. The parties were advised that the Court would hear submissions on these preliminary matters and would not deal with the substantive arguments unless the Court determined that it had jurisdiction to consider arguments on the substantive matters raised. Summary of Complainant arguments on time limits The Complainant sought to have a fair hearing from 2014 to 2020, details of which are provided to the Court. The Complainant was still employed by the Respondent in June 2015 as she still wanted to fulfil her part of the mutual obligation with the Respondent but she was forced to leave her job because of the intolerable behaviour of the Respondent. The experience of a false, vindictive complaint against her caused the Complainant to require medical care for stress management, which by June 2015 reached crisis point. The Complainant phoned the WRC in 2015 and was told that she was out of time to make a complaint as it was more than six months since her suspension. She did not have the capacity to challenge this at the time. She does not believe that she was out of time when she made the call. Also, it is evident from an email, provided to the Court, that the Respondent still regarded her as an employee as late as July 2015. The Complainant was advised by the then Minister for Health to continue to try to resolve matters through HSE channels. She initiated a Protected Disclosure process, which proved to be arduous and frustrating and continued from 2016 to 2020. The Complainant contacted various parts of the Respondent organisation seeking help but she received no support or guidance. Likewise, she was unable to avail of the assistance of the Ombudsman as the issue in question related to her employment relationship with the Respondent. At a loss to know how to progress and in light of the negative experience with the Protected Disclosure procedure, the Complainant approached the WRC again in 2017. She was advised to obtain clarity about her employment status from the Department of Employment Affairs and Social Welfare. It took three years for that Department to confirm that she was an employee when she was suspended from employment. With this clarification, the Complainant sought to invoke the Respondent’s Grievance Procedure for employees. The Respondent refused to accept that she was an employee and refused her the right to use the procedure. The Complainant then raised her complaint with the WRC and had to wait one and a half years for a hearing, followed by a second hearing three months later, after which a case that she had been pursuing consistently for eight years against incredible odds was thrown out on a time limit. The issue of the Complainant’s employment status should be dealt with first as if it had been addressed by the Respondent, there would be no time limit issue. Any delay has to be viewed in the context of the trauma suffered by the Complainant at the hands of the Respondent and in consideration of the fact that she made every effort to obtain fair and safe conditions to enable an investigation to take place. Summary of Respondent arguments on time limits The Complainant has not provided any services to the Respondent since August 2014, more than 6 years prior to her submitting her complaint to the WRC. The complaint does not comply with the requirements of s 8(2) of the Act as it was not made within 6 months of the date of relevant dismissal and even if it is established, as per s.8(2) (b) that there is ‘reasonable cause’ for delay, the complaint was submitted well outside the 12 months’ limit prescribed in that sub section. The Court has no jurisdiction to hear the appeal. The Complainant states that she did not get confirmation from the relevant Department of her employment status until 2020 and that this prevented her from lodging her complaint earlier. These circumstances still do not bring the Complainant within 12 months of the relevant dismissal. With regard to the issue of employment status and the impact on time limits, the Court is referred toA Holistic Therapist v A Holistic Therapy Business, ADJ-00024851, A Sales Assistant v A Retailer ADJ 00023011andThe National Museum of Ireland v Minister for Social Protection (2016) IEHC 135,in which case the Court found that a decision regarding employment status under the Social Welfare Acts, while it may be persuasive, has no effect on the decision of an Adjudication Officer or this Court. The Complainant cannot rely on ignorance of the law in seeking to extend time limits, seeMinister for Finance v Civil and Public Services Union and Ors (2007) 18 E.L.R. 36andDublin Enterprise and Technology Centre v Gerard Daniel RPD207. The applicable law Unfair Dismissals Act. 8. (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 Deliberation It is clear to the Court that the circumstances of this case have been very upsetting for the Complainant and that she believes she was denied an opportunity to clear her name. The Court can offer no comment on this. The Court’s jurisdiction is, very clearly, confined to consideration of appeals in respect of alleged dismissals where the original complaint was lodged with the WRC within 6 months of the act concerned. The only discretion allowed to the Court, in circumstances where it is satisfied that there is ‘reasonable cause’ to do so, is to extend that limit to 12 months. The Court does not have any authority to extend the limit beyond that. The Complainant contends that the applicable date when the employment relationship was severed was 4 June 2015. It is a fact that she did not lodge her complaint until 8 December 2020. There is, quite simply, no scope for the Court to seek to extend its jurisdiction beyond, at most, 12 months from 4 June 2015. The circumstances of the delay and explanations for same do not, unfortunately for the Complainant, have any relevance to the limitations on the Court’s jurisdiction. Therefore, it is self evident that the Court does not have jurisdiction to hear this appeal. The Court can put the matter no further, other than to observe that consideration of arguments made by both parties regarding the Complainant’s employment status is unnecessary as that matter is rendered irrelevant by the Court’s lack of jurisdiction. Determination The Decision of the Adjudication Officer is upheld.
NOTE Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |