Complainant

Respondent

Parties

Roslyn  Twohig

Alliance Packaging Ltd

Representatives

Shane Healy, Healy O'Connor Solicitors

 Don Hegarty – Employment Relations Consultant

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-00035894-001

28/04/2020

The Complainant was employed as an accounts manager from 8 January 2018 until the termination of her contract by way of purported redundancy on a disputed date in April 2019. She worked 24 hours a week for a net salary of €370. The Complainant submits that she was unfairly dismissed by way of being subjected to a “sham redundancy”, where she claims that she was unfairly selected in a process that was not conducted justly according to established procedures.

The Respondent claims that a genuine redundancy situation had arisen because of a downturn in business and, furthermore, that it had negotiated a sum of money with the then representative of the Complainant, where no mention of a claim arising from the Complainant’s termination of contract arose. The Respondent company was family owned at the material time, with four employees. Three employees were family members, including the Director Mr Horgan. The Complainant was the sole employee who was not a family member.

The Respondent submitted that the Complainant was out of time with the submission of her claim in that it was outside the statutory time limit under the Unfair Dismissals Acts 1977-2015 (“the Acts”)   and questioned the jurisdiction of the Workplace Relations Commission in the matter.

Preliminary Point – Time Limit for the Complaint.

The Complainant gave evidence that she made a mistake when she submitted her complaint form on 28 April 2020 which showed that her dismissal date was 26 April 2019 when it should have read 29 April 2019. She relied on correspondence of 10 May 2019 from Mr John Horgan (exhibited) where the redundancy date was cited as 29 April 2019. She is therefore requesting that I extend the period for submission of complaint within an extended six-month period as allowed for under section 8(2) of the Acts.

The reasonable cause as set out by the Complainant in her evidence was that she was led to believe that her Unfair Dismissal complaint had been submitted to the WRC, within time, by a representative whom she engaged at the time.. The Complainant exhibited correspondence between the then representative and herself, to that effect. The Complainant in evidence stated that she subsequently discovered online that her representative in the complaint was involved in fraudulent activity. She lodged the complaint herself on 28 April 2020 when she discovered that no record existed at the WRC of a complaint.

Mr John Horgan for the Respondent gave evidence that whilst he acknowledged the existence of the letter of 10 May 2019, he could not remember why he wrote 29 April 2019 as the redundancy date when the actual dismissal date was 26 April 2019, the date when the Complainant’s 3 weeks’ notice expired (The notice letter was exhibited).

Mr John Horgan, Director of the Respondent Company, gave evidence that there was a downturn in the business after the company had changed warehousing arrangements, when they brought it in-house, and they needed a full-time person with more flexibility and warehousing experience. Sales were down 30% .  He understood that the discussions post-redundancy  with the Complainant’s then representative, which resulted in the payment of 4 weeks wages to the Complainant, had concluded matters.

In cross-examination he accepted that that there was no employee handbook nor a redundancy policy. He was not aware that the Complainant had previous forklift experience, nor did he enquire further on this point. He accepted that an advertisement appeared shortly after the Complainant’s redundancy seeking a full-time person in an expanded role in the warehouse.  

The Complainant gave evidence that she received her letter of notice of redundancy on 5 April 2019 after previously attending a meeting with Mr Horgan on 28 March 2019.  She had a flawless record in the company where she issued invoices, carried out administrative duties and prepared accounts. She was never offered alternative employment and she felt she would have been a good fit for a newly advertised role because she had previous forklift experience.

The Complainant asserts that she was dismissed in what was a “sham redundancy” without proper procedures and in a manner contrary to natural justice and fairness.

The Applicable Law:

Section 1 of the Acts refers to the date of dismissal, in its relevant part, as follows:

“date of dismissal” means—

(a)    where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment [Acts 1973 to 2005], the date on which that notice expires,…

Section 8(2) refers to my power to extend the initial six-month period, where it 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,…

The Complainant gave evidence that she had made a mistake when she inputted 26 April 2019 on her complaint form as the date of dismissal, when she meant to put down April 29, 2019.   I was not convinced by her evidence on this point. She was employed as an accounts manager, and she gave uncontested evidence that she was very good at her job with no reprimand on performance. Her work included attention to detail in the preparation of invoices and the management of accounts. I find it hard to accept that she would have made a mistake in such an important detail and,  furthermore that the date of 26 April 2019, which she had inputted, happened to be the expiry date of her three weeks’ notice which she received on 5 April 2019. Having considered all the evidence in this case, both oral and documentary, I am satisfied, in line with section 1 of the Acts,  that the date of dismissal was the date of the expiry of the Complainant’s three weeks’ notice. She received her notice on 5 April 2019 therefore I find as a fact that the dismissal date for the purposes of the Acts was 26 April 2019. As she submitted her complaint to the WRC on 28 April 2020, it was over twelve months from the date of dismissal therefore I do not have jurisdiction to hear the case in accordance with section 8(2) of the Acts.

The complaint was submitted more than 12 months since the date of dismissal therefore I do not have jurisdiction to adjudicate on the complaint  as I deem it to be out of time.

Unfair Dismissals Acts 1977-2015, Out of Time.