ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00047435

Parties:

Complaint:

Date of Adjudication Hearing:  03/09/2024

Workplace Relations Commission Adjudication Officer:  Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complain to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Affirmation or Affirmation would be required and full cross examination of all witnesses would be provided for.

The required Oath / Affirmation was administered to all witnesses present. The legal peril of committing Perjury was explained to all parties.

No issue regarding confidentiality arose.

Background:

1:        Opening Legal Preliminary Issue; Reference time limit of Complaint

The complaint was filed with the WRC on the 9th July 2023. The date of dismissal, while contested by the Complainant was stated to have been the 26th of November 2022.

Section 8(2) of the Unfair Dismissals Act,1977 and Section 41 (6) of the Workplace Relations Act 2015 require a complaint to be lodged within a period of six (6) months from the date of Dismissal.

This would give a latest date for receipt of complaints at the WRC as the 26th May 2023.

The Complaint receipt date at the WRC was the 9th July 2023 - some 7 months and 13 days later or approximately 6 weeks over the time limit.

An Adjudication Officer has the power to extend the time limit to 12 months if the first referral was delayed due to “Reasonable Cause” – UD Act,1977 Section 8 (2) (a) and Section 41(8) of the Workplace Relations Act, 2015.

In this case the Respondent Employer argued that the complaint was out of time and no reasonable cause existed to allow the Adjudication Officer to grant an extension to 12 months.

To assist the reader the respective Arguments are set out below.

1:1      Respondent Arguments and evidence presented.

The Respondent gave Oral Testimony and submitted Written evidence.

The Respondent pointed to a meeting that had taken place on the 26th November 2022. At this meeting between the Complainant and his Manager, Mr N, the issue of a Career Break for the Complainant had been discussed. It was stated by Mr N in oral testimony that he had explained to the Complainant that a Career Break in the Organisation had to be applied for in keeping with Company Policy -submitted in evidence. The Complainant had by that time stopped coming to work and a “Career Break” could not simply be agreed “at the drop of a hat” by the Store Manager.

The Complainant was stated to have been quite aggrieved and stated that he was “Resigning”. He did not return to work. He was asked to confirm this in writing.

To clarify matters, the Respondent sent a first Registered letter (8th December 2022) inviting the Complainant to an Attendance review meeting on the 10th December 2022. An Post records show the letter was delivered and signed for. The Complainant did not attend the meeting. A second Registered letter was sent on the 15th December 2022 informing the Complainant that the employment had ended on the 26th November but invited him to contact the Respondent immediately.

“It is not the case that you wish to resign, then please contact the undersigned as a matter of urgency but in any event no later than 7 days from the receipt of this letter”.

No reply or contact was received and the Respondent, reasonably believed that the Employment was over by resignation on the 26th November 2022.

1:2      Complainant Arguments

The Complainant, in his Oral testimony and Complaint form, stated that he had been accepted on a Third Level course in November 2022. He was most anxious to attend this course. He had reasonably anticipated that a Career Break would be granted without any difficulty. The meeting with Mr N was very disappointing and he felt that Mr N had simply been unnecessarily difficult.

As he had to attend this Course, he had stated that he was not in a position to come to work but he had never resigned.

He maintained strongly that he had never received any communications, Registered letters etc from the Employer as they were stating - especially the key letter of the 15th December 2022.

1:3      Adjudication review and discussion.

The Oral Testimony presented by the Complainant and by Mr N, for the Respondent was crucial in regard to the meeting of the 26th November 2022.

On the balance of probabilities, the version presented by Mr N seemed more credible.

The Complainant, in his Testimony, was very clear that the Third Level Course was of major importance to him. It clearly outweighed the night-time position with the Supermarket. He did not seek to argue his case via Internal Appeals or Grievance Procedures. He had made it clear that he was not available for work.

The Respondent was procedurally correct in the attempts to contact (phone, e mail and Registered letters) the Complainant in December 2022.

The issue of the Registered letters was discussed/queried by the Adjudication officer. The Complainant agreed that he was resident, with relations, at the address mentioned. The An Post delivery records showed that the registered Letters had been accepted and signed for at the address stated.

The Complainant argument that the Letter had never been, either received/delivered or physically passed on to him, was hard to understand. It stretched credibility.

The Respondent Employer is a major employer with very well-developed Staff Procedures. The Complainant had some 16 or more months service. He was aware of Staff Procedures.

On balance and having considered the evidence, especially the Oral Testimony, the Adjudication view has to be that the Complainant voluntarily resigned, probably somewhat hastily, on the 26th November 2022 to purse his Third Level course. This view is supported by the failure of the Complainant to raise any Grievances or Appeals under well-known staff procedures against a purported “Dismissal”.

1:4      Conclusion

The Complainant resigned from his employment of the 26th November 2022.

The 6-month reference period has to run from that date to the 26th May 2023.

The WRC Receipt date was the 9th July 2023.

No Reasonable Grounds were advance to justify an extension of the reference period to 12 months.

According the Complaint has to be deemed “Out of Time” and Not Well Founded.

2:        Findings and Conclusions:

3:        Decision:

CA-00057610-001

Section 41 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of the cited Acts.

The complaint is “Out of Time” and accordingly cannot be deemed Properly Founded.

Dated: 15th October 2024. 

Workplace Relations Commission Adjudication Officer:  Michael McEntee

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