Complainant

Respondent

Parties

Penelope  Ahearne

Dunnes Stores

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-00060765-001

29/12/2023

This complaint is a constructive dismissal claim which is denied by the Respondent on jurisdictional and substantive grounds.

A (duplicate) unfair dismissal complaint (Adj 51558) was withdrawn by the Complainant at the commencement of the Adjudication hearing on 25.11.24.

An earlier Industrial Relations dispute file was closed on 11.12.23.

The Complainant alleges that she was constructively dismissed from her employment with the Respondent.

In respect of the jurisdictional preliminary application, as raised by the Respondent, that the complaint of Unfair Dismissal (UD) is out of time the Complainant submits as follows:

1.       Due to adverse circumstances within her workplace the Complainant was forced to resign her employment on 9 December 2022.

2.       At the time of her resignation, she gave Respondent management, a letter from her doctor indicating that she was too unwell to work out her contractual notice period.

3.       Her employment ended on 9 December 2022 or two weeks later, if one counts her contractual notice period, which brought her employment to an end date of 23 December 2022.

4.       The Complainant issued a WRC Industrial Relations (IR) dispute form on 27 May 2023. This was done within the 6 months of her dismissal. She accepts that she did not issue a UD complaint alleging constructive dismissal at this time.

5.       The Industrial relations dispute form was acknowledged by the WRC on 27 May 2023.

6.       There were delays in serving the Respondent with the IR dispute form. The Complainant alleges that the Respondent’s claim of wrong address and non-receipt by the Respondent of the IR dispute form is baseless and not evidenced. The Complainant refutes the Respondent’s suggestion that the wrong address for the Respondent was provided by her.

7.       The Complainant accepts that the Respondent objected to the IR dispute investigation and that the IR dispute (Adj 48220) was closed by the WRC but the Respondent prevaricated on the baseless claim of not being properly completed. This prevented the investigation from proceeding. The Respondent did not object to the IR investigation until mid-November 2023 and after that the file was closed by the WRC on 11 December 2023. The delays caused by the Respondent allowed time run against the Complainant who at all times believed that the complaint that she issued in May 2023, which was within time, would at some stage be investigated.

8.       However, when the WRC advised the Complainant that based on the Respondent’s objection to the IR investigation that the file would be closed this meant that the Complainant was then outside the 12-month time limit extension for to bring her unfair dismissal complaint.

9.       The Complainant contends that the delay in serving the IR dispute form on the Respondent from May until November 2023 was due to unfounded assertions of non-receipt of the form and the wrong address being provided.

10.   Had an objection to the IR dispute been raised earlier, ie in May or even during the summer time, the Complainant would have had an opportunity to either serve an UD complaint or apply to amend the IR dispute to be treated as an unfair dismissal complaint within the time extension period.

11.   As soon as the Complainant was advised that the IR dispute file had been closed the Complainant immediately set about issuing a fresh, unfair dismissal complaint form. This issued on 29 December 2023, which the Complainant accepts is outside the 12-month period from the date of the dismissal.

12.   The Complainant submits that the WRC form is not a statutory form, and that the original IR dispute was issued within time.

13.   The Complainant requests the WRC to proceed to investigate the UD complaint by treating the IR dispute form, which is now a closed file, as being a complaint form upon which the UD complaint may be investigated.

The Respondent made the following submissions:

1.       The date of alleged dismissal is the date that the Complainant resigned her post, 9 December 2024

2.       Following her resignation, the Complainant issued multiple WRC complaints. An IR complaint in May 2023, a UD complaint in December 2023 and another duplicate UD complaint in 2024.

3.       The IR complaint issued on 27 May 2023, was issued just inside the 6 months for an employment rights complaint to be investigated, if it were an ER complaint, which it was not, it was an IR complaint.

4.       Two days later 29 May 2023, the WRC wrote to the Complainant advising that the complaint as served was incomplete and requested that it be re-submitted.

5.       There were a variety of inaccuracies on the IR dispute form. Not just in respect of the Respondent’s address but dates were incorrect and other details were also missing.   These deficiencies were managed by the WRC who wrote to the Complainant advising her to remedy the defects.

6.       It is incorrect for the Complainant to allege that she was not properly advised as to the deficiencies or inaccuracies within the IR dispute form. And in any event these are matters that fall to a complainant to ensure are correct, not any other party.

7.       Ultimately the correct address for service was identified and the Respondent was sent the Complainant’s IR dispute form but this was not until 27 November 2023.

8.       These delays and inaccuracies on the IR dispute form were not created by the Respondent. It was the WRC who identified the deficiencies and sought to obtain the correct details.

9.       A standard WRC letter (that is sent in all IR disputes) was then sent to the Respondent requesting them to indicate - within 21 days - their objection or acceptance to an IR dispute investigation.

10.   The Respondent notified the WRC within 21 days that they objected to the IR investigation. Based on that objection the WRC wrote to both parties on 11 December 2023 informing them, that IR file, Adj 48220 would close.

11.   It is a matter for the Complainant to bring an ER complaint within the statutory time limit.

12.   The Complainant issued the present UD complaint on 29 December 2023 but that was issued outside not only the the 6-month time limit and also outside the 12 month time (reasonable cause) extension provision.

13.   The Complainant’s IR dispute closed on 11.12.2023 and an Adjudication Officer does not have the discretion either to re-open a closed IR dispute and then treat it as an employment rights complaint nor does he/she have the discretion to consider an employment rights breach if it is issued outside the time extension period of 12 month post- breach.

14.   The Respondent requests that the complaint be dismissed for want of jurisdiction.   

I am satisfied that I do not have the statutory power to do what the Complainant asks me to do.

Adjudication Officers are creatures of statute. Under the IR Acts either party may decide to not engage with the industrial relations investigation. The IR process is a non-binding process aimed as resolution of employment issues. It is distinct from employment rights complaints where if a Respondent decides to not engage, an Adjudication process may continue and a decision, which is legally binding, may issue. If an Employer indicates to the WRC that they do not wish to engage with the IR process, that brings that process to an end and the IR investigation (Adj) file will close. That is what happened in this case.

If she wanted a binding investigation into her constructive dismissal complaint the Complainant was obliged to issue a employment rights complaint in May 2023, not an IR dispute.

The Complainant is correct in her submission that the WRC form is not a statutory form and that if a complaint is set out within the narrative part of the form and the Respondent is properly on notice of a complaint, even though the incorrect legislation may be on the form, an investigation may proceed and be dealt with under the correct and appropriate legislation.

However an Adjudication Officer is precluded from reopening a closed IR investigation which the Respondent has no obligation to engage with and has stated that they do not wish to do so. That brings the IR process to an end and the WRC were correct in closing the IR file at that time.

An Adjudication Officer is also precluded from investigating a complaint if it issues outside 12 months from the date of the breach.

For an AO to find otherwise in either respect would be legally fragile.

The obligation is on a Complainant to issue an employment rights complaint within the statutory time limit. Regrettably this was not done by or on behalf of the Complainant.

As the date of the alleged breach (the dismissal) is not in dispute. It was on 9 December 2022. I should add notice period does postpone the date of dismissal if the employment ends with a resignation, particularly when the Complainant’s doctor advised that she was unfit to work out her notice.)

As the date of receipt of the UD complaint form was 12 months and 20 days after the dismissal, I am satisfied that this complaint is statute barred. I am precluded by statute from investigating this complaint. On this basis I am satisfied that this complaint cannot be well founded.

This complaint is not well founded.

Time limit to bring WRC complaint