Complainant

Respondent

Parties

Mr Robert  Kennedy

Daifuku America Ireland Daifuku

Representatives

  Self-Represented

Mr Tiernan Lowey instructed by Mr Brian Murphy Byrne Wallace LLP

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-00055759-001

28/03/2023

This matter came before the Workplace Relations Commission dated 28/03/2023 as a complaint submitted under section 8 of the Unfair Dismissals Act, 1977.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 02/11/2023.

The Complainant was employed by the Respondent from 22/03/2021 until his employment terminated on 07/04/2023.  The Complainant commenced his employment with the Respondent as a Safety Officer and he was promoted to the position of Safety Manager in January 2023.  The Complainant was paid €7,700.00 gross per week for which he worked 45 hours. 

The Respondent is an external company headquartered in Chandler, Arizona.  It has an Irish branch with registered offices at c/o Intel Ireland Ltd, Leixlip Industrial Estate, Co. Kildare.  The Respondent manufactures and installs cleanroom semiconductor manufacturing equipment. 

At the outset of hearing the Respondent representative raised a number of preliminary objections as to jurisdiction.  The Complainant raised an objection as he claimed he had not received the Respondent submission.  When it was confirmed and documentary proof of same provided to him that it had been emailed to him by the WRC on 26 October the Complainant did concede receipt of same but objected that he had not received a hard copy. 

I adjourned the matter to consider the preliminary arguments presented and to provide the Complainant with an opportunity to review the Respondent submission and to file his own submissions in respect of the preliminary arguments raised.  Despite being provided with a more than fair and reasonable extension to the initial timeline agreed in which to file his submissions the Complainant has failed to do so.

At the conclusion of hearing I reserved my position on the following: 

(i)                  whether to decide this matter on the basis of the preliminary arguments presented;  and

(ii)                whether to hold a further hearing.

As set out below, I have decided these matters on the basis of the preliminary arguments presented.   Accordingly, in the circumstances, there will not be another hearing on these matters. 

No cause of action - constructive dismissal claim 

Section 1 of the UDAs defines a constructive dismissal as “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.”

In his WRC complaint form dated 28 March 2023, the Complainant claims he was constructively dismissed on 28 February 2023 due to the conduct of his employer or others at work.  Accordingly, in the first instance, the Complainant bears sole responsibility for proving:

(a) That he terminated his employment with the Respondent; and

(b) That he terminated his employment with the Respondent before the date of lodgement of the complaint and, as he specifically contends in his complaint form, on 28 February 2023.

Where a Complainant cannot prove these points, the Adjudication Officer must refuse jurisdiction for want of a constructive dismissal occurring prior to lodgement of the complaint. It is only after this issue is determined in favour of a Complainant that an Adjudication Officer can then proceed to consider the merits of any constructive dismissal claim (and the Respondent reserves its right to make further and better submissions in that regard, strictly if necessary).

In the absence of any clear letter of resignation, it is generally accepted that where unambiguous words of resignation are used by an employee to an employer, and are so understood by the employer, it is reasonable to conclude that the employee has resigned.

The Respondent rejects the assertion that the Complainant left his employer on 28 February 2023, whether due to his or anyone else’s conduct at work or otherwise. On the facts of this case, the Respondent never received any letter of resignation. Indeed, the Complainant never uttered words, unambiguous or otherwise, of resignation to his employer. Indeed, and fundamentally in the context of any constructive dismissal claim, prior to the within proceedings, the Complainant never raised with the Respondent any grievance, internal or external, formal or informal, to indicate that his conditions of employment were untenable or otherwise problematic. The Respondent submits that receipt of the Complainant’s first WRC complaint form represented the first occasion on which the Respondent was put on notice of any belief by the Complainant that he had been constructively dismissed.

The fact is that at the material time he lodged the UDA claim, the Complainant was the subject of an ongoing disciplinary process into allegations of serious misconduct which at the time of lodgement of his complaint had not concluded.

The facts of this case do not disclose any evidence of the Complainant resigning from his employment, such as would give rise to a constructive dismissal claim. The Complainant’s employment was terminated by the Respondent on 7 April 2023 following a fair and thorough disciplinary process concerning matters of gross misconduct.

No cause of action – any UDA claim

If the Complainant seeks to change his claim to one of unfair dismissal simpliciter, which the Respondent would resist, it is nevertheless submitted that he continues to have no cause of action under the Unfair Dismissals Acts in circumstances where any such complaint must have been lodged before any such termination of his employment by the Respondent and so at a time 5 when there existed no dismissal (or cause of action) required to claim under the UDAs. To this end, the fact of dismissal at the material time is disputed. 

The Complainant lodged the relevant WRC complaint form on 28 March 2023. The Complainant claims that his employment terminated on 28 February 2023. This is incorrect. The true position is that the Complainant continued to be in employment not only on 28 February 2023 but also on 28 March 2023, being the date on which the complaint was lodged with the WRC. He continued to be the subject of and to participate in an unfinished disciplinary process relating to allegations, inter alia, of racial abuse against work colleagues.

Section 8 of the Unfair Dismissals Acts, as amended, governs the determination of claims for unfair dismissal. An employee may refer a claim for redress under the UDA for unfair dismissal to the Director General of the WRC and such claims shall be referred by the Director General to an adjudication officer for adjudication (section 8(1)(a) of UDA).

Section 8(2) goes on to provide:

(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,

(c) 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. 

‘Dismissal’, for the purposes of the UDAs, is defined at section 1 therein as:

(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 the 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

(c)     [N/A]

Indeed, the term ‘date of dismissal’ is also defined in the UDAs to avoid any ambiguity as to the correct date where it involves a fixed or specified purpose contract or where a period of notice of termination has been given or not, as the case may be, but when an employee would have been entitled to same by statute.

A number of Adjudication Officers (and the EAT before them) have held that there is no jurisdiction to hear a claim where it is brought before the date of dismissal.   There was also a small number of cases where jurisdiction had been accepted where a complaint was lodged in error before the actual date of dismissal. These cases tended to involve confusion on the part of the employee as to when, it could be said, that a dismissal had occurred usually owing to the time delay between confirming a dismissal to an employee and the period of notice applied before any such dismissal actually took effect.

In Brady v Employment Appeals Tribunal [2015] ELR 1, the High Court determined that the EAT had jurisdiction to hear a complaint which was brought before the date of dismissal.  In a very fact specific decision concerning a redundancy dismissal, the Court noted that when the employee had asked his employer from when his dismissal was effective he was informed ‘Now’.  The employee thus duly lodged an unfair dismissal complaint with the EAT based on this unambiguous representation. At the EAT hearing, the employer, Bohemian’s Football Club, argued that the employee was not in fact dismissed when he was told ‘Now’ but that his dismissal was only effective two weeks later after the expiry of his redundancy notice period.  The High Court (Barrett J.) held that the express oral representation made by a representative from the Club was so clear that it would be unfair and inequitable to allow the club to claim that the dismissal occurred some two weeks later.  The Court further held that the Club was estopped from relying on this point based on the express representations made. Barrett J. noted in his decision that “Of course there will be some boundary in time and some circumstances in which an ostensibly premature notice will be found in fact to have been premature and thus not duly lodged within the appropriate time period for the purposes of s.8(2)”.

None of the facts relied on by the High Court in support of its decision on equitable or other grounds exist in the instant case.

Here, by the time the UDA complaint was lodged, no decision had been communicated to the Complainant, much less made, concerning his employment with the Respondent, whether he had been or was going to be dismissed.

The Complainant was never advised that he was being dismissed before his actual termination date on 7 April 2023 whether with immediate effect (as in Brady) or otherwise.  No question arises in the instant case of any confusion or ambiguity as to the date of the relevant dismissal arising owing to the addition of a notice period or some other such timeframe.  In the instant case, it is incontrovertible that no decision to dismiss had been made until 7 April 2023. 31.

In Neeson v O’Rourke UD 2049/2011 (a determination dated 1 October 2015 and following the High Court’s Brady judgment), the EAT spoke of the unique circumstances of Brady and emphasised the primacy of the governing legislation, the ordinary meaning of the words used and clear intention of the legislature.  As in this case, the claim in Neeson was for constructive dismissal.  The respondent employer contended that the Tribunal did not have jurisdiction to hear the claim as it had been lodged while the claimant was still in the employment of the respondent.   In refusing to accept jurisdiction to hear the claim, the EAT highlighted the addition in section 8(2) by the 1993 amending Act of the unambiguous words “beginning on the” date of the relevant dismissal being the point at which time runs for the purposes of the statutory 6-month limit, which words were not contained in the original section subsection (2):

‘[…] which merely required the lodging of the claim “within 6 months of the date of the relevant dismissal”. The Tribunal is of the opinion that this amendment demonstrates a manifest intention by the legislature to preclude claims being lodged before the dismissal date.’

The Tribunal went on to state:

“if the Tribunal were to look with leniency on premature claims the system could well become clogged up with claims based on the expectation that a dismissal might occur sometime in the future which could later be withdrawn”. 

Neeson was recently (12 May 2023) applied and followed by an Adjudication Officer in O’Regan vO’Regan Site Dumpers ADJ-00041271.

While no application has been made to extend time for the purposes of taking a fresh complaint, for completeness, the Respondent submits that there are no grounds amounting to reasonable cause which would justify granting any such application.  The Respondent reserves the right to make further and better submissions on this point, if necessary.

Incorrect Respondent

In both of his WRC complaint forms, the Complainant has joined ‘Daifuku America Ireland’ as the Respondent to these proceedings and so identifies Daifuku America Ireland as his employer in these proceedings.  The Complainant was employed by ‘Daifuku Cleanroom Automation America Corporation’, which is not a party to this complaint as it was not named on the complaint form.

The correct title is contained in the Complainant’s contract of employment dated 22 March 2021 and is also contained in email signatures, company headed letters and payslips.

It is submitted that there existed no contract of employment between the Complainant and an entity called Daifuku America Ireland.  More fundamentally, however, ‘Daifuku America Ireland’ is not a legal person with the necessary juristic quality to participate in proceedings. It has no legal capacity or personality either to enter into a contract or act in a case.

In the premises, the within proceedings are wholly misconceived and incorrectly constituted.

It is further respectfully submitted that there exists no legal mechanism or statutory power conferred on an Adjudication Officer within either the Workplace Relations Act 2015 or the Unfair Dismissals Act 1977 to amend the title of proceedings in cases before them.  In limited circumstances due to clerical or administrative errors, an Adjudication Officer may seek to amend errors contained in his or her decision where it has already issued (see Workplace Relations Act 2015, section 41(16) and Organisation of Working Time Act, section 39).

A party who has failed to name the correct respondent has only one option – the issuance of a fresh claim subject to statutory time limits.  To this end, the Respondent submits that the Complainant is statute-barred from adding ‘Daifuku Cleanroom Automation America Corporation’ as a party to these proceedings as no reasonable cause prevented the Complainant from correctly naming the respondent to begin with.

The Respondent relies on the decision of the Supreme Court in Sandy Lane Hotel Limited v TimesNewspapers Limited [2011] 2 ILRM 139 in support of the submission that the complainant was statute-barred from joining Daifuku Cleanroom Automation America Corporation in these proceedings.  In Sandy Lane, the main authority on misjoinder the Court did not allow the amendment of the defendant from Sandy Lane Hotel Limited to Sandy Lane Hotel Co Ltd based on the “long established principle that a court will not add a defendant […] if the action against that party is quite clearly statute barred.”

The Respondent also relies on the decision of the Labour Court in Wach v Travelodge ManagementLtd EDA 1511 in support of this submission.  It is noted that there was no application to amend the name of the respondent. 

The Complainant failed to file submissions on the preliminary objections despite an adjournment granted on the day of hearing to facilitate same followed by a further extension of time to facilitate such submissions which I am satisfied went above and beyond what would be considered fair and reasonable in all the circumstances.  

In the normal course of events, I would proceed to hear the substantive matter and reserve my position on the preliminary arguments.   My ruling on the preliminary arguments would then be contained in the ensuing decision.  

The guidance notes for a hearing issued by the WRC in July 2021 states that in the vast majority of cases the AO will take evidence in relation to the preliminary points raised and then proceed to hear the substantive claims.  The use of the word “majority” is noteworthy.   

I am mindful of the case of Guerin v. SR Technics Ireland Limited [UD969/2009] where the Employment Appeals Tribunal was asked to make a decision on a preliminary matter before moving to hearing the substantive case and given the significant preliminary point raised the Tribunal moved to hear the preliminary matter first and reach a decision on same. 

Furthermore, 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.”

In the case of Donal Gillespie v. Donegal Meat Processers [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 heard 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 Brothers of Charity (Roscommon) Ltd. v. Marian Keigher [EDA 1014], the Labour Court considered the determination of an issue by way of preliminary decision.  The Labour Court referred to the judgments of Kenny J in Tara Explorations and Development Co. Ltd v. Minister for Industry and Commerce [1975] IR 242; and Hardiman J in B.T.F. v. Director of Public Prosecutions 2 ILRM 367 (the “B.T.F case”).  In the latter case Hardiman J held as follows:

“It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary matter.  In a case where a point is raised which in and of itself and without regard to anything else may terminate the whole proceedings, clearly a strong case can be made for its trial as a preliminary issue…”

Furthermore, I am obliged at all times to consider that which constitutes the most efficient and effective use of the resources of the WRC. 

Accordingly, I will address the matter of the incorrectly named respondent at the outset in circumstances whereby this matter may be determinative of the entire proceedings. 

Incorrect Respondent

I note the Respondent submits that the Complainant has incorrectly named the Respondent on his WRC complaint form and consent to amend is not forthcoming.  I note there is no legal entity called Daifuku America Ireland documented by the Complainant as his employer on the WRC complaint form.  I note the Respondent submits the within proceedings are wholly misconceived and incorrectly constituted. 

The Complainant has not availed himself of the opportunity to file submissions on the matter or to seek that I amend the name of the Respondent. 

Notwithstanding, I am obliged to fulfil my statutory duty to make all relevant inquiries into this complaint and in so doing I am obliged to consider if it is legally permissible for me to amend the name of the Respondent in the instant case.     

The Relevant Law

Section 39 of the Organisation of Working Time Act, 1997 (“the OWT Act”) provides that “a relevant authority” can amend the form so that the correct employer is named in circumstances where a respondent objects to an application to amend.

The statutes listed in section 39 of the Organisation of Working Time Act include the Unfair Dismissals Acts under which this complaint is filed.  Accordingly, I am satisfied that I have authority to amend the name of the Respondent if I find that it is appropriate and reasonable to do so.

Section 39 of the Organisation of Working Time Act, 1977 provides as follows:

39.—"(1) In this section “relevant authority” means a rights commissioner, the Employment Appeals Tribunal or the Labour Court.

(2) A decision (by whatever name called) of a relevant authority under this Act or an enactment or statutory instrument referred to in the Table to this subsection that does not state correctly the name of the employer concerned or any other material particular may, on application being made in that behalf to the authority by any party concerned, be amended by the authority so as to state correctly the name of the employer concerned or the other material particular.

(3) The power of a relevant authority under subsection (2) shall not be exercised if it would result in a person who was not given an opportunity to be heard in the proceedings on foot of which the decision concerned was given becoming the subject of any requirement or direction contained in the decision.

(4) If an employee wishes to pursue against a person a claim for relief in respect of any matter under an enactment or statutory instrument referred to in subsection (2), or the Table thereto, and has already instituted proceedings under that enactment or statutory instrument in respect of that matter, being proceedings in which the said person has not been given an opportunity to be heard and—

(a) the fact of the said person not having been given an opportunity to be heard in those proceedings was due to the respondent’s name in those proceedings or any other particular necessary to identify the respondent having been incorrectly stated in the notice or other process by which the proceedings were instituted, and

 (b) the said misstatement was due to inadvertence, then the employee may apply to whichever relevant authority would hear such proceedings in the first instance for leave to institute proceedings against the said person (“the proposed respondent”) in respect of the matter concerned under the said enactment [or statutory instrument] and that relevant authority may grant such leave to the employee notwithstanding that the time specified under the said enactment [or statutory instrument] within which such proceedings may be instituted has expired:

Provided that that relevant authority shall not grant such leave to that employee if it is of opinion that to do so would result in an injustice being done to the proposed respondent.”

Section 39(4)(b) of the OWT Act provides that where a complainant has incorrectly named a respondent and where “the said misstatement was due to inadvertence,” then, he or she may apply to have the complaint heard against the correct respondent.  To permit a complainant to have his / her complaint heard, I must be satisfied that to do so would not “result in injustice being done to the proposed respondent.” 

In making my decision I am guided by the majority determination of the Employment Appeals Tribunal (EAT) in Jeevanham Al Tambraga v. Orna Morrissey and Killarney Avenue Hotel [UD36/2011] where the Tribunal considered its powers under section 39 of the OWT Act and reached the following conclusion:

“The majority acknowledge that s.39 of the Organisation of Working Time Act 1997 gives certain scope to the Tribunal for amendment of the name of the employer.  Such power is qualified quite significantly in s39(4)(b) of such section noting there must be inadvertence on the part of the relying party, to justify the making of an amendment.  The word inadvertence is the qualifier in these circumstances, meaning an accident or oversight.”  [emphasis added]

The Tribunal found that “…there is no inadvertence in this matter.  In evidence the claimant stated that he had his payslips which clearly state his employer…”

In considering whether to amend the name of the Respondent, I must examine if the Complainant should have known the name of his employer. 

Whilst I recognise the Complainant presented as a litigant in person and did not have legal representation on the day of hearing, I find that the name of the Complainant’s employer was clearly stated on his payslips and on his contract of employment.  I am satisfied the Complainant was in possession of a number of documents that clearly documented the correct name of his employer throughout his employment.  I am unable to find that the misstatement of the Respondent’s name on the complaint form was due to inadvertence because he had knowledge from his payslips and his contract of employment who his employer was at all material times.    

For completeness I note the WRC in its guidance notes on procedures in the adjudication and investigation of all employment and equality complaints and disputes which is available online for the benefit of all complainants sets out as follows:

“The Complaint Form should be carefully filled out, correctly completing all relevant sections including the correct name and address of the employer / respondent.  It is vital to ensure the correct legal name of the employer / respondent is entered on the Complaint Form.” [emphasis added]

I find, therefore, that I do not have jurisdiction under section 39 of the OWT Act to change the name of the Respondent in these proceedings to that of the Complainant’s former employer for the reasons set out above.      

I find I do not have jurisdiction to hear this complaint. 

I find that in the circumstances there is no requirement for me to consider the preliminary objection regarding the pre-lodged complaint. 

Notwithstanding, for the sake of completeness and for the avoidance of doubt I address the matter of the pre-lodged complaint hereunder.

The Relevant Law

The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act, 1977.    However, it is a term commonly understood to refer to that part of the definition in section 1(b) of the Act which provides:

“dismissal,” in relation to an employee, means –

(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.”

Section 8 governs the determination of claims for unfair dismissal and provides 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,

(c) 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 bythe Director General.”

The Relevant Facts

I note the Complainant filed his complaint with the WRC on 28 March 2023 in which he claims he was constructively dismissed on 28 February 2023 due to the conduct of his employers or others at work.  The Respondent submits there was no letter of resignation; no words of resignation were spoken; and the Complainant was in fact dismissed for gross misconduct by the Respondent on 07 April 2023 following a disciplinary process. 

The Complainant submits at hearing he told the Respondent at a meeting on 28 February that he would be taking a case to the WRC and he submits these words constituted words of resignation.  It is settled law that a resignation is a unilateral act which, if expressed in unambiguous terms, brings a contract of employment to an end.  In the matter of Millett v Shinkin [2004] ELR 219 the Labour Court held that “a resignation is a unilateral act, which if expressed in unambiguous and unconditional terms, brings a contract of employment to an end.”    

Having regard to the case law I am not persuaded the Complainant’s actions and / or words constitute an unambiguous act of resignation.  Accordingly, I am satisfied based on the facts as presented to me that the Complainant was in employment with the Respondent when he filed his complaint with the WRC. 

I am mindful of the EAT case ofCaragh Neeson v. John O’Rourke & Sean O’Rourke Chartered Accountants [UD2049/2011] which was a case in which there was a claim of constructive dismissal and where the Tribunal considered the question of where a complainant lodged the complaint while still being an employee of the respondent.  The Tribunal found that the wording of section 8(2) of the 1977 Act “demonstrates a manifest intention by the legislature to preclude claims being lodged before the dismissal date.”  The Tribunal held as follows:

“…if the Tribunal were to look with leniency on premature claims the system could well become clogged up with claims based on the expectation that a dismissal might occur sometime in the future which could later be withdrawn.”

As this complaint was not filed in accordance with section 8(2) of the Unfair Dismissals Acts, 1977 – 2007 I would have been unable to accept jurisdiction to determine the substantive case.    

CA-00055759-001

For the reasons stated above, I find I do not have jurisdiction to hear this complaint. 

Incorrectly named respondent; unfair dismissal pre-lodged claim;