Complainant

Respondent

Parties

Patrick  McCarthy

JMC Van Trans Limited

Representatives

Fiona Pekaar B.L. instructed by Andrew Freeman of Sean Costello Solicitors

Thomas Ryan of Peninsula Business Services Ireland

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-00055217-001

21/02/2023

The complainant made a complaint of unfair dismissal. The circumstances of the dismissal were also the subject of a criminal case. At the hearing on 9 January 2024 the respondent, through his representative, informed me that on 27 October 2023 the criminal charges had been struck out at a District Court hearing. There was a possibility the charges could be re-submitted but they were not aware this had been done at the time of the hearing. In these circumstances I conclude that there was no impediment to proceeding with the hearing.

The respondent did not attend the hearing. I am satisfied they were informed of the details of the hearing.

When the complaint was initially referred an issue of time limits arose.

Section 8 (2) of the Unfair Dismissals Act, 1977 states 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 complainant was dismissed by letter dated 11 February 2022. He was informed; “As your actions amount to gross misconduct you are summarily dismissed. As you have been summarily dismissed, you are not entitled to notice or pay in lieu of notice.” He appealed this decision and his dismissal was confirmed by letter dated 11 March 2022. The respondent submitted that this was the date of dismissal and this was within 12 months of the complaint being referred to the WRC; 21 February 2023. The respondent proceeded to make a submission for me to consider if there was “reasonable cause” for the complaint to be accepted outside of the 6 months but within the 12 months period to refer a complaint. Firstly, I must decide on the date of dismissal.

Section 1 of the Unfair Dismissals Act “date of dismissal” as

“(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 Act, 1973 , the date on which that notice expires.

(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973 , the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973 ,”

As no contract was submitted I must consider this under the Minimum Notice and Terms of Employment Act, and based on his service the complainant would normally be entitled to 4 weeks notice. However, section 8 of that Act states “Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.”

The letter of dismissal dated 11 February 2022 states: “As your actions amount to gross misconduct you are summarily dismissed. As you have been summarily dismissed you are not entitled to notice or pay in lieu of notice.” The complainant exercised the right of appeal. However, his employment finished on 11 February 2022 and I consider that to be his date of dismissal. Furthermore, as he was dismissed for gross misconduct the respondent was entitled to give him no notice.

The complainant’s date of dismissal was 11 February 2022 and this complaint was referred to the WRC on 21 February 2023.

The complaint was referred more than 12 months from the date of dismissal. In these circumstances I have no discretion to extend the time limits and I find I have no jurisdiction to investigate this complaint.

The complainant’s date of dismissal was 11 February 2022 and this complaint was referred to the WRC on 21 February 2023. The complaint was referred more than 12 months from the date of dismissal. In these circumstances I have no discretion to extend the time limits and I find I have no jurisdiction to investigate this complaint.

Out of time