Complainant

Respondent

Parties

Joseph  Harte

Carton Group Unlimited Company

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

Mr. William Wall, Peninsula Business Services (Ireland) Limited

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00053729-001

15/11/2022

The Complainant commenced employment with the Respondent on 10th September 2020. The Complainant was a permanent, full-time member of staff, in receipt of an average weekly wage of €800.00. The Complainant’s employment was terminated by the Respondent on 29th April 2022, with the final appeal of the same being finalised on 18th May 2022.

On 15th November 2022 the Complainant referred the present complaint to the Commission. Herein, he alleged that his dismissal was both procedurally and substantively unfair. By response, the Respondent denied that allegations raised by the Complainant and submitted that his complaint was fair for the purposes of the impleaded Act. During the hearing the Respondent further submitted that the complaint was statute barred for the purposes of the Act.

A hearing in relation to this matter was initially convened for 23rd May 2023. Given that the evidence did not finalise on this date, the matter was set down for a further day of hearing. Following a series of adjournments, the matter was finalised on 22nd March 2024. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either party in the course of the hearing.

Towards the commencement of the hearing, the Respondent raised a preliminary issue as to jurisdiction, in circumstances whereby this is potentially determinative of the entire proceedings, this matter will be considered in advance of the substantive arguments.

By submission, the Respondent stated that the present complainant was referred in excess six months from the date of dismissal. In circumstances whereby the matter would remain out of time with the inclusion of the Complainant’s statutory notice period, they submitted that the present complaint is out of time and must be dismissed.

By response, the Complainant submitted that the complaint was referred within the cognisable period for the purposes of the impleaded Act. In this regard, he submitted that his actual date of dismissal was 18th May 2022, the date on which he received notification that the appeal of his dismissal was unsuccessful. He submitted that until this period he was actively engaging with the Respondent regarding his dismissal, and that the process was not finalised until that date. 

In addition to the foregoing, the Complainant submitted that the relevant period of the purposes of referral of the complaint should be extended. In this regard, he submitted that in July of 2022, he received a response to the subject access request. He submitted that the material disclosed on foot of his request fundamentally altered the relevant factual matrix, and given that the Complainant was not in possession of these facts on the date of his dismissal, he could not refer his complaint at that time.

By submission, the Respondent has alleged that the present complaint was referred in excess of six months from the date of dismissal. In such circumstances, they submitted that no dismissal occurred within the cognisable period for the purposes of the present Act, and that on this basis, the complaint should fail.

The Complainant response to this application was two-fold. Firstly, he alleged that as a matter of fact, that his actual date of dismissal fell within six months of the date of referral. In the alternative, he submitted that the relevant period for the purposes of the present complaint should be extended on the grounds of “reasonable cause”. This application for reasonable cause was grounded on the fact that the Respondent alleged withheld vital information until a point following the Complainant’s termination. In addition to the same, the Complainant submitted he was engaging with the Respondent during the cognisable period, primarily in relation to his appeal, and that on this basis the relevant period should be extended.

In the instant case, the complaint was referred on 15th November 2022, providing an ordinary cognisable period of 15th May 2022 to the date of referral. By the correspondence opened by the parties, the date of dismissal in the first instance is 29th April 2022, a date outside of the ordinary cognisable period for the purposes of the impleaded Act.

In this regard, Section 1(B) of the Act (as amended) defines “date of dismissal” in the following terms,

“…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,”

Redmond On Dismissal Law, Ryan, 3rd Ed 2017 at paragraph 21.77states that,

“…the Unfair Dismissals Act, as amended, deems the date of dismissal to be the date on which notice, had it been given, would have expired. In practice, this can mean there is a crucial distinction between the employee’s date of termination (when he or she ceased to be an employee pursuant to the contract of employment,) and his or her, date of dismissal (the date that is reckonable for the purposes of establishing the length of services qualification and the time limit rules under the Unfair Dismissal legislation)”

Notwithstanding the foregoing, the Respondent has submitted that the Complainant was dismissed on the ground of gross misconduct. Section 8 of the Minimum Notice and Terms of Employment Act, 1973, provides that,

“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.”

In the matter of J&D O’Brien -v- Raymond Morrin MND 194 the Labour Court stated that,

“…the dismissal of the Complainant has been determined to have been unfair and the Court cannot allow the (Respondent), by operation of the Act at Section 8, to avoid its obligations under the Act arising from the unfair termination of the Complainant’s employment.”

In the present case, the allegation of gross misconduct raised by the Respondent was very much in contest during the substantive hearing. In such circumstances, if the Complainant was to be successful in this aspect of the complaint, the actual date of dismissal would be the date on which the Complainant’s notice expires, rather that the date of dismissal set out in correspondence.

In this regard, it is common case that the Complainant commenced employment on 10th September 2020, with a termination date of either 10th September 2020 or 18th May 2022. Section 4(2) of the Minimum Notice and Terms of Employment Act provides that,

“The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be (a) if the employee has been in the continuous service of his employer for less than two years, one week…”

In this regard, it noted that the relevant section of the Respondent’s employee handbook advises that the relevant contractual notice mirrors the provision cited above.

In such circumstances, if the date of dismissal of 29th April 2022 is accepted, even with the application of notice, the date of dismissal would remain outside the cognisable period of the purposes of the present Act.

Notwithstanding the foregoing, the Complainant has submitted that the date of dismissal was not in fact the date of the letter of termination. In this regard, he submitted that he continued to contest his dismissal, and that the Respondent engaged with the same, until 18th May 2022. On this date the Complainant was informed that his appeal was unsuccessful and that his termination was finalised.

In Ann Marie Ryan v UPC Communications Ireland LimitedUD13/2013, the EAT held that,

“The Respondent did not deal with the appeal expeditiously which impeded the right to natural speedy and effective justice: and …… The Claimant’s terms of employment were silent on the implications and effectiveness of the dismissal once issued and that they did not state that when the appeal was lodged this did not act as a stay on the dismissal. Therefore, causing a lack of clarity and ambiguity for the Claimant leading her to believe that her dismissal was stayed pending the outcome of the appeal.”

On appeal, in the matter of Ann Marie Ryan v UPC Communications Ireland Limited [2017] IEHC 567, the High Court held that,

“The point made by the Respondent that the date of dismissal is the date of the initial dismissal is yet to be determined in this jurisdiction and is not at this stage to be considered clear-cut and well settled. The issue therefore falls to be determined definitely by the appropriate courts.”

Further clarification in relation to this issue arose in the Labour Court decision of Becton Dickenson Panel Limited -v- Philip Goring UDD213. Here, the Court held as follows,

“There is no dispute that the Complainant’s employment terminated with immediate effect on 1st September 2017, he was not placed on suspension pending the appeal outcome and it was the last day he worked for the Respondent. The outcome of the appeal, upholding the dismissal, was notified to him on 25th October 2017. It is not disputed that there was neither an express nor an implied term in his conditions of employment that a disciplinary sanction would not take effect pending the conclusion of an appeal process. He did not work and was not paid after the 1st September 2017, the day he was informed on that day that his employment was terminated with immediate effect, due to gross misconduct.”

Having regard to the present factual matrix it is apparent that the same is analogous to the authority cited above. In this regard, the Complainant was informed in clear and unambiguous terms, that his dismissal was to take effect on 29th April 2022. While the Complainant was on paid suspension for some time previous to this, this is the final date on which he was paid and the final date he was deemed to be employed. The correspondence is likewise silent as to any further suspension or stay on the termination pending an appeal. Finally, it is noted that a meeting in relation to the appeal was convened and a decision issued in respect of the same some three weeks later, 18th May 2022. In such circumstances, it is apparent that the actual date of dismissal for the purposes of the present complaint is either 29th April or 6th May 2022, dependent on notice, both of which are outside of the cognisable period for the purpose of the present complaint. 

Regarding the second part of the Complainant’s application, he has applied for an extension of the cognisable period to twelve months in accordance with the Act. Such an extension, should same be granted, would have the effect of rendering the complaint in time.

In this regard, Section 8 (2) of the Unfair Dismissals Act, 1977 provides that,

“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 test for establishing such “reasonable cause” is that formulated by the Labour Court determination of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338. Here the test was set out in the following terms,

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

In the more recent matter of Leon Kinsella -v- Anson Friend DWT209, the Labour Court described the test to establish reasonable cause in the following terms,

“It clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account.”

Regarding the instant case, the Complainant grounded his application for such an extension on several grounds. Firstly, he submitted that he was engaged with the Respondent in the appeal of his dismissal, with the same not finalising until sometime following his dismissal in the first instance. While it is accepted that the Complainant engaged in the appeal in good faith and should be commended for seeking to overturn his dismissal in accordance with the Respondent’s internal procedures, it is noted that such engagement with internal procedures cannot operate as grounds to extend time under Section 8(2)(b) cited above.

In the matter of Dublin City Council -v- Skelly DWT212, the Labour Court held that,

“…a complainant’s decision to delay referring a statutory complaint to the Workplace Relations Commission beyond the six-month time limit provided for generally in Section 41 of the Workplace Relations Act for the purposes of exhausting an alternative means to resolve their dispute does not constitute reasonable cause for the delay”

In the matter of Becton Dickenson, cited above, the Court held that engagement in an internal appeal, in particular, cannot form grounds for an extension of time. Having regard to the foregoing, and the authorities cited above, I decline the Complainant’s application in this respect.

In addition to the foregoing, the Complainant submitted that the Respondent withheld certain information during the internal processes. He submitted that this information was received in July 2022, in response a subject access request on his behalf. The Complainant stated that this information was a “game changer” in respect of his complaint and constituted further proof of the Respondent’s failure to abide by fair procedures. A number of issues arise with this contention. Firstly, taking the Complainant’s submission at its height, he received this information in July of 2022. Thereafter, he did not refer the complaint for a further four months or until November of that year. If the alleged withholding of this information was to constitute grounds for extension, and in this regard it must be noted that the Respondent has absolutely denied this allegation, this neither explains the delay thereafter or provides an excuse for the same. In addition to the foregoing, it is further apparent that the Complainant fully contested his dismissal by way of internal appeal. During this process, the Complainant raised many procedural and substantive allegations in respect to his dismissal. This being the case, it is apparent that the Complainant had formed that view, at least by this stage, that this dismissal was unfair on the basis of the information provided to him. In this regard, the information provided thereafter, while relevant from an evidentiary point of view, neither explains nor excuses the delay on the part of the Complainant.

During the hearing itself, the Complainant raised numerous issues regarding his health in the aftermath of his dismissal. Notwithstanding the same, it is apparent that the Complainant engaged in various other processes during the cognisable period for the purposes of the present Act, including engaging in the appeal of the sanction and corresponding with the Respondent in respect of the subject access request. Having regard to the foregoing, these issues cannot form the basis of an extension on the grounds of reasonable cause.

During the hearing, the Complainant raised issue with the letter of dismissal, stating that the same was unclear, and did not actually serve to dismiss him. In this regard, it is noted that the letter of dismissal was issued from the third-party body engaged to conduct the disciplinary meetings with the Respondent. While the Complainant is correct in that this correspondence emanated from a third party organisation as opposed to the Respondent itself, it is clearly marked “outcome of disciplinary”. The correspondence goes on to state that the Complainant is to be “summarily dismissed” on the grounds of gross misconduct and set out the mechanism for appeal. Having reviewed this document in its entirety, and in consideration of the above-mentioned points, I find that the same served to terminate the Complainant’s employment without notice and cannot, reasonably, be construed in any other way.

Finally, following the hearing, the Complainant provided a copy of a tax document issued from the Respondent, confirming that his final day of employment was the date on which his appeal was dismissed. In this regard, it is noted that such documents are created for revenue purposes and while useful in a evidentiary sense, do not overturn or render moot the points raised above. In this regard, the reality of the situation remains that the Complainant’s employment was terminated by the correspondence dated 29th April.

Having regard to the accumulation of foregoing points, I find that the date of dismissal occurred in excess of six months from the date of referral of the complaint. Having considered the Complainant’s various applications for an extension of the cognisable period for the purposes of the present complaint, I find that the same do not explain or excuse the delay in referring the same. Having regard to the foregoing, and the authorities cited above, I find that the Complainant has not established “reasonable cause” as required by the Act. In such circumstances, I find that the Respondent did not unfairly dismiss the Complainant within the cognisable period of the present Act, and as a consequence of the same, his complaint is not well-founded.

I find that the Respondent did not unfairly dismiss the Complainant within the cognisable period of the present Act, and as a consequence of the same, his complaint is not well-founded.

Unfair Dismissal, Cognisable Period, Date of Dismissal, Reasonable Cause