UDD2411

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00037272 (CA-00048642-001).

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 6 June 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 21 March 2024.

The following is the Determination of the Court:-

DECISION:

Background to the Appeal

This is an appeal by Mr Wesley McCarthy (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00037272, dated 3 May 2023) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer decided that the complaint under the Act was statute barred in circumstances where the Complainant had been dismissed for gross misconduct on 29 July 2021 but did not refer his complaint to the Workplace Relations Commission until 15 February 2022. Notice of Appeal was received in the Court on 2 June 2023. The Court heard the appeal in Waterford on 21 March 2024.

Respondent’s Submission

The Solicitor for the Respondent relies on s.8(2) of the Act in support of her submission that the within complaint is statute barred, the Complainant having been dismissed for gross misconduct on 29 July 2021.

Section 8(2) provides:

“(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.”

Complainant’s Submission

The thrust of the Complainant’s submission is that although he was notified by his then employer – Care Choice DAC (‘the Respondent’) – of its decision to dismiss him on 29 July 2021, the dismissal did not take effect until the internal appeal hearing took place on 20 September 2021 having regard to the fact that “the Complainant’s contract of employment and the Respondent’s disciplinary procedures are silent on whether an appeal lodged acted as a stay on dismissal”. According to Counsel’s written submission to the Court: “It was reasonable for the Complainant to believe, until that point, that the matter was still being run internally, and that the actual date of his dismissal was 29 September 2021”. He further submits that his complaint under the Act was received by the Workplace Relations Commission on 15 February 2022 i.e. within six months of 29 September 2021.

In the alternative, Counsel seeks to extend time for bringing the within claim in accordance with section 8(2)(b) of the Act. He submits: “[T]he Adjudicator (sic) may extend time under 8(2)(b) of the Unfair Dismissals Act where it is reasonable to do so, and the ‘but for’ test may be applied. In circumstances where the Complainant rightfully and reasonably utilised an available appeals process internally, it is submitted that it is reasonable to extend time to enscapsulate this appeal process.”

Discussion and Decision

The established jurisprudence in relation to when a dismissal ordinarily takes effect is succinctly and accurately summarised in paragraph [22.69] of Redmond on Dismissal Law (Third Edition) where Dr Ryan, commenting on the determination of the Employment Appeals Tribunal in O’Neill v Bank of Ireland [1993] ELR 145 states:

“The case highlights an important issue which should not remain opaque in disciplinary procedures. Where an internal or external appeal is provided, there should be no doubt as to whether the contract is saved in all the circumstances pending conclusion of the appeal. In O’Neill, the EAT was influenced by the statement in the agreed procedures following the first decision to dismiss that disciplinary action would not be taken pending the outcome of the hearing of an appeal (presuming the right to appeal was exercised) and evidence was adduced to show adherence to this principle. In the absence of such a provision or of a practice to the contrary, the effective date of dismissal will be the date on which termination is communicated to the employee and not the date on which he or she is informed that his appeal against dismissal failed.”

There was no evidence of any such “provision or practice” in this case. It follows, therefore, that the Complainant’s effective date of dismissal was 29 July 2021 and the referral of his complaint under the Act to the Workplace Relations Commission on 15 February is out of time.

The Complainant seeks to extend time to bring his complainant on the basis that he utilised the internal appeals procedure. It is well established in the jurisprudence of this Court that a potential Complainant’s decision to avail himself or herself of an internal procedure does not stop the clock running nor does it constitute reasonable cause for referring a complaint outside the timeframe specified by the Oireachtas for so doing.

In summary, therefore, the Court finds that the within complaint is out of time and the Complainant has not demonstrated reasonable cause that both explains and justifies his delay in referring the Complaint. The appeal, accordingly, fails and the decision of the Adjudication Officer is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
TH	______________________
29 April 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.