Complainant

Respondent

Parties

Zakia Tizi-Hsan

Chewbay Ltd t/a Joule Ireland

Representatives

  None in attendance

Emma Davey BL instructed by Beauchamps LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00051781-001

17/07/2022

The complainant referred a claim of constructive dismissal under the Unfair Dismissals Acts to the Workplace Relations Commission on 17 July 2022.

The Commission scheduled a number of hearings for the case in 2023, which were postponed at the request of the complainant or respondent.

The complainant did not attend a hearing scheduled for 14 December 2023, and an application was made by the respondent’s representative to strike out the case for non-pursuit.

The claim of constructive dismissal was in respect of the complainant’s termination of her employment with the respondent on 16 March 2022.

The complaint form received on 17 July 2022 provided limited detail of the claim.  The complainant did not submit any further documentation in support of her claim.

Comprehensive submissions and documentation relating to the respondent’s defence were submitted to the Commission in June 2023.

The respondent fully denied the claim against it.

The complainant voluntarily resigned from employment.  The respondent had at all times acted reasonably in the course of the complainant’s employment and followed established procedures. 

On foot of the complainant’s non-attendance at the hearing on 14 December 2023, an application was made to strike out the complainant’s case for non-pursuit pursuant to section 48 of the Workplace Relations Act 2015.

The within claim under the Unfair Dismissals Acts 1977 -2015 (the “Acts”) was referred to me for investigation.  A hearing for that purpose was arranged for 14 December 2023. 

The complainant emailed the Commission the day before the hearing advising that she could not attend the hearing as she was abroad and requesting a new hearing date.  The complainant’s email was forwarded to the postponements team, who responded to the complainant with information on the postponement policy and procedure.  No further communication was received from the complainant.

The complainant did not attend the hearing on 14 December 2023.  After allowing some time for any delay on the part of the complainant and establishing that the complainant had not initiated the postponement procedures, I heard an application by the respondent to strike out the claim for non-pursuit.

Strike out of claim not pursued

I have considered the respondent’s application having regard to section 8C of the Acts.  

Section 8C(1) of the Acts provides:-

“Where a claim for redress under this Act is referred to the Director General under section 8, the Director General may strike out the claim if he or she is satisfied that the claim has not been pursued by the employee during the period of one year (or such other period as may be prescribed by regulations made by the Minister) immediately preceding its being struck out.”

The respondent’s application was grounded on the complainant’s failure to engage with communications from both the respondent and the Commission in relation to her claim, and the pursuit of that claim.  It submitted that the pattern of behaviour illustrated the complainant’s lack of engagement and lack of respect for the process.  It further submitted that the respondent has a right to have a claim against it disposed of in a timely manner and has incurred considerable cost and time and wasted resources in its preparation to defend the claim.  

Progress of the claim

Four hearing dates scheduled for the hearing of the complainant’s claim in 2023 were postponed, either at the request of the complainant or respondent.  

In advance of the first hearing date in March 2023, the complainant engaged with the Commission on 16 February 2023 to advise of witnesses who would attend the hearing.

The complainant subsequently initiated the Commission’s postponement procedures in respect of the 7 March and 14 June 2023 hearing dates and was granted a postponement of those hearing dates on grounds of exceptional circumstances and substantial reasons.

The respondent’s applications for postponement of hearing dates on 26 October and 29 November 2023 were granted in accordance with the Commission’s postponement policy.  The complainant was in contact with the Commission in October 2023 in relation to the respondent’s application to postpone the 29 November 2023 hearing date.

Conclusion

Section 8(C)(1) of the Acts provides a mechanism for striking out claims that have not been pursued by a complainant employee during the one year period preceding it being struck out.

The complainant has engaged with the Commission in the relevant period preceding this decision, which engagement has included the initiation of the Commission’s procedures to postpone previous hearing dates notified to the parties and to provide details of witnesses.  Whilst the engagement, for the most part, has not had the effect of progressing the case to conclusion, this is not a situation where the complainant fell out of contact or failed to provide the Commission with information during the relevant period under section 8(C)(1) of the Acts.  Accordingly, I am not satisfied to strike out the claim for non-pursuit under section 8(C)(1) of the Acts.

I do however find that the complainant’s failure to initiate the Commission’s postponement procedures in respect of the 14 December 2023 hearing, to engage with the Commission further to her notification on 13 December 2023 that she was unable to attend that hearing and to attend the hearing on 14 December 2023, warrants the dismissal of her claim and a finding that she was not unfairly dismissed.

The fact of dismissal and the complainant’s claim for redress for unfair dismissal were disputed by the respondent.  I am satisfied that it was necessary for the complainant to attend the hearing in pursuit of her claim.  There was no application by or on behalf of the complainant for a postponement or adjournment of the hearing arranged for 14 December 2023.  I did not receive any communication after the hearing relating to the complainant’s non-attendance.

In the circumstances and in the absence of any evidence to the contrary, I find that the complainant was not unfairly dismissed, and I dismiss this claim.

In the circumstances outlined above and in the absence of any evidence to the contrary, I find that the complainant was not unfairly dismissed, and the claim is dismissed.

Constructive dismissal – Complainant’s non-attendance at hearing – Application to strike out for non-pursuit