ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029356
Parties:
| Complainant | Respondent |
Parties | Colm Moore | Sword Security Limited Sword Security |
Representatives | In person. | Richard Lee Baily Homan Smyth McVeigh |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00038831-001 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00038831-002 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00038831-003 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038831-004 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038831-005 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038831-006 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038831-007 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038831-008 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038831-009 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038831-010 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038831-011 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00038831-012 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00038831-013 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00038831-014 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00038831-015 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00038831-016 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038831-017 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18A of the Organisation of Working Time Act, 1997 | CA-00038831-018 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00038831-019 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00038831-020 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00038831-021 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00038831-022 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00038831-023 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00038831-024 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00038831-025 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 24 of the National Minimum Wage Act, 2000 | CA-00038831-028 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00038831-029 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038831-030 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038831-031 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038831-032 | 20/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00038831-033 | 20/07/2020 |
Date of Adjudication Hearing: 24/08/2021
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 39 of the Redundancy Payments Acts 1967 - 2014 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The complainant was employed by the respondent from June 2003 until 20th January 2020. These complaints were received by the Workplace Relations Commission on 20th July 2020. At the hearing on 24th August 2021 the Adjudication Officer informed the parties that he would accept submissions on the preliminary issue raised by the Respondent. The issue in question was in relation to timing of the complaint. The Complainant submitted his submission on 6th September 2021 and the Respondent submitted their submission on 20th September 2021. The following decision addresses this preliminary point. |
Summary of Complainant’s Case:
Preliminary 1. The adjudication officer requested brief submissions from both sides to consider two issues of contention between the parties. a) being when a contract of employment ends, is it as soon as a request is made or until a level of acceptance is reached due to notice requirements. i. It is assumed that if it is decided that the contract ends as soon as a request is made then the case falls, whereas if it is decided that it is only when a level of acceptance is reached then, the case will be decided at a later full hearing, to quantify what or if all the allegations are valid or not. With both parties granted the ability to appeal that decision. b) The other bone of contention is Zalewski IESC 24 [2021] applied within this case. i. It was understood that if Zalewski can be applied to a part or the whole of the case then it will be conducted publicly in part or as a whole. If it’s decided that Zalewski cannot be applied, then the case will be heard in private. With both parties accorded the power to appeal that decision. Formally ending a contract of employment 1. The MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACT, 1973, is not a one-sided ACT that simply ensures employers carry out their duties in giving employees notice. It is a legal destination upon both the employee and the employer. If no acceptance of notice periods were required under the law that would mean that no employee had to work out a notice period and it would leave a lot of employers high and dry. Under this ACT the standard notice period employees are required to give is at least a week. The argument, in this case, is that while an employer cannot force an employee to stay indefinitely, they can reject the notion that the employee would walk without a notice period of a minimum of 7 days (which would end the claimant’s employment between 26th and 28th of January 2020) unless they were waiving that right, no waiver was received until the 22nd, thus ending the contract then. While it may be correct to argue that there is no notice period attached to the contract of employment (along with a lot more detail missing), Lyons v M.F. Kent & Co. (International) Ltd. [1996] highlights if a contract is silent on notice, the courts can imply a ‘reasonable’ term, meaning legally the notice period could be longer than one week, not less. To leave without notice, or a waiving of notice is a violation of the ACT and case law as highlighted below. a) Sections of ACT that mandate an employee to give a notice period: i. Sect 5.1 (b) “by an employee who has been in such continuous service to terminate his contract of employment with that employer.” – this is the section that mandates the employee to give notice. ii. Sect 6.— “An employer shall, subject to the right of an employee to give counter-notice under section 10 of the Act of 1967 or to give notice of intention to claim redundancy payment in respect of lay-off or short-time under section 12 of that Act, be entitled to not less than one week's notice from an employee who has been in his continuous employment for thirteen weeks or more of that employee's intention to terminate his contract of employment.” – this is the section that mandates as under law that the notice period by an employee cannot be less than one week. iii. Sect 7.1 “Nothing in this Act shall operate to prevent an employee or an employer from waiving his right to notice on any occasion or from accepting payment in lieu of notice.” – This section of the ACT allows for an employer/employee agreement to accept the ending of a contract without notice.
2. Offer, acceptance, and consideration (the bases of contract law)– a. As far back as Taylor v Laird (1856) 25 LJ Exch 329 (and all Irish contract law since); it has been understood that a contract requires acceptance including agreement when it ends, for a contract to be valid. Which makes sense as contracts are legal agreements between two parties, that shall not be made void by one party without agreement or damages. b. It is also well understood that all contracts to be legally binding require consideration, as established in White v Bluett (1853) LJ Ex 36 (and all Irish contract law since). The consideration, otherwise, known as what is on offer for each party, i.e., the exchange of services. The consideration in this matter is the required notice period, what length of notice does the employee have to give. c. It is also well understood in case law since Hyde v Wrench (1840) 3 Bean 334 that once a counteroffer is made, the original offer is rejected (i.e., the offer to leave on the 20th of January). d. It is also understood that ‘Acceptance may be defined as a final and unequivocal expression of agreement to the terms of an offer.’ This level of acceptance clearly was not reached on the 20th, conversely the rejection of waiving the notice period was clear from the respondent on that date. e. If it is agreed that the grounding of case law on contracts applies in this case, i.e. acceptance of the consideration of a notice period or a waiver of the notice period is required to end a contract. Therefore, the deliberation is not the right to leave employment but the right to an employer to have a notice period or to waive it and for that waive to be accepted or rejected. 3. The facts within Keeling’s (as supplied by the respondent) The claimant would argue that this decision, is complimentary to the case before us and deals with the Grealish v Murphy [1946] IR 35 doctrine of subjective - what did the parties intend contract case law. After the final offer was issued on the 1st of March there was no rejection. It has not been suggested otherwise and the notion that a contract only ends when an individual receives their P45 is a red herring as a P45 often takes weeks to be provided, even after the employee has left the company. The notion that the receipt of administrative documents like a P45 is when the contract ends, is not valid. Between the 1st of March and the 6th of March, there were no actions in Keelings to say that rejection occurred, there was no employee/employer level contact, like the phone call the claimant received on the 21st of January 2020. Whereas there was a rejection of an offer to resign in Keelings on the 8th of February as they maintained an employee/employer relationship, in the very same way as the claimant’s offer to leave without notice was rejected on the 21st (via a phone call) and the morning of the 22nd. The claimant contests that the event that occurred on the 8th of February in Keeling’s is the same as what occurred on the 20th , 21st and equally on the morning of the 22nd of January 2020 from the claimant/respondent viewpoint. 4. The facts around the timeframe of the claimant's forced resignation (constructive dismissal) from Swords Security Limited. The claimant worked one day between the 19th of December 2019 and the 22nd of January 2020 (a timeframe where he would normally work), the claimant emailed the respondent with an offer to leave on the 20th of January 2020 hoping the respondent would waive the notice period, this was rejected. As is evident from the emails (on file) and the phone call on the 21st , it was only until the second email on the January 22nd 2020 at 3 pm that it was finally clearly accepted, as clearly the prior email and phone call rejected matters. After the email on the 22nd, the communication stopped as an employee/employer relationship. Between the 20th and the 22nd it is clear that the respondent was acting as an employer in refusing the claimant to leave without notice. It is clear that during the phone call of the 21st if the claimant had agreed to stay then he would not be reapplying to re-join employment with Sword Security Limited as he had not yet left employment, as it was still being debated about whether he could leave without notice. Acceptance is unmistakably made at that time it is received i.e., 3 pm on the 22nd, that acceptance cannot travel backward, before a date where a rejection occurred. 5. The claimant had no issue with the timeframe and was allowing the respondent to resolve things right up to the deadline. It is also clear within the claimant’s communication with Swords Security Limited in early July 2020 that the 22nd of January was the date that he left the company, at that timeframe he was trying to resolve matters outside court. He had already sent the respondent the bones of his complaint in the first week of July 2020. At that time, he could have easily filed, only two things were holding him up filing at that time - one was the company number (which legally should be on his payslip), that he was requesting from them, and he only received the number on the 16th of July. The second issue being, he gave the respondent a timeframe of the 20th July 2020 to resolve matters (knowing he had up until the 21st to file). He also contacted the respondent in the days, weeks prior, and including on the 20th of July before filing to see if within the next 24 hours matters could be resolved (the communication on that day went unanswered). It was only then that he filed 24 hours before the 6 months’ timeframe and over 6 months before the period ends that he could be granted an extension for matters. This proves that both the claimant and respondent were aware of the deadline, and both did not dispute it prior to application to the WRC. 6. Conclusion of subsection – It is correct to say that an employer cannot under law refuse an employee to leave a company unless hard fasten rules were applied to the contract, like some Armies have for example. In this case, the rejection of the offer, was more of a rejection to relinquish the notice period than a rejection of exiting employment. During the phone call of the 21st, it was not accepted that a notice period would be waived, which is evident from the email on the morning of the 22nd when a rejection of the notice was issued. It is similarly evident from both case law and the ACT that employees must give notice or obtain a waive, to stay within the confines of the law, governing that to trust the date of terminating the contract to be 22nd January 2020 if a waiver occurred on that day, otherwise with notice the 26th or 28th January 2020 due to a notice legal minimum notice period, it would run against the facts to say a waiver occurred on the 20th January 2020. Awareness, in addition, occurred between the parties of limited timeframe of the WRC application, within their correspondence in July 2020 that is apparent. The claimant understands that the respondent is seeking to stop him from receiving his day in court, unfortunately for the respondent, the law is against them and therefore the case should be heard. Zalewski 1. The case should be heard according to the constitution - Bunreacht na hÉireann Article 34. 1 “Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and save in such special and limited cases as may be prescribed by law, shall be administered in public.” It has been accepted with Zalewski, legalisation and the current governance of the WRC to mean that a case like that is before us should be held in public, anything less would run against these provisions. If the adjudication officer deems a contention of apparent misconduct by either the respondent or claimant, to fall outside of the constitution and Zalewski then that component must be held privately, separate to the disputes that lawfully must be held in public. |
Summary of Respondent’s Case:
In accordance with the directions of the Adjudication Officer of 24 August 2021, the Respondent furnishes this submission. As directed, the submission relates solely to the question of whether or not the Complainant’s claim pursuant to the Unfair Dismissals Act 1977 (as amended) was referred to the Workplace Relations Commission (“WRC”) within time. The Complainant is alleging constructive dismissal. The written submissions of the Complainant of 6 September 2021 contain a number of assertions which, with respect, are not relevant to the said question. Insofar as any particular assertion made by the Complainant is not expressly addressed hereunder, same is in no way to taken as an acceptance by the Respondent of the truth or correctness of any such assertion. It is submitted that the Adjudication Officer ought to conclude that he cannot entertain the claim, as it was not initiated within the applicable statutory time limit. By email sent on 20 January 2020, the Complainant resigned. The said email - with the subject heading “Leaving Swords” - is unambiguous and clear. By way of that email, the Complainant was tendering his resignation. It is respectfully submitted that the email of 20 January 2020 can only sensibly and reasonably be construed as the Complainant resigning. The words in the email are unambiguous. In effect, they have the same meaning as if the Complainant had stated “I am resigning now”. That was the gist and import of the email. The “date of dismissal” is therefore 20 January 2020. In constructive dismissal cases, a notice period is not taken into account in assessing the date of the dismissal. The date of dismissal in constructive dismissal cases is the date on which the Complainant submits his resignation. To be within time, the claim pursuant to the Unfair Dismissals Act 1977 would have to have been received by the WRC not later than 19 July 2020. The claim was not received by the WRC until 20 July 2020. It was therefore lodged outside the six month limitation period provided by section 8 of the Unfair Dismissals Act 1977. Firmly established that “date of dismissal” is the date of resignation It is well-established that a notice period is not included in calculating a date of dismissal in a case of constructive dismissal. A resignation is the employee’s unilateral act of ending the employment relationship. In a claim alleging constructive dismissal, where notice is not given, the employee is not able to invoke a contractual or statutory notice period to rely on a date of dismissal later than the date of his unilateral act of resigning. The position is authoritatively set out by Kerr, in his annotation of the Unfair Dismissals Act 1977 (Consolidated), as follows, under the heading “Date of dismissal” in cases of “constructive dismissal” notice entitlement is not taken into account in assessing the date of dismissal: see Stamp v McGrathUD 1243/1983 (reproduced in Madden and Kerr, op. cit. at p. 5). Nor will the claimant's holiday entitlement under the Organisation of Working Time Act 1997 be added on: Maher v B & I Line UD271/1978 and Twomey v O'Leary Office Supplies Ltd UD 864/1994 (reproduced in Madden and Kerr, op. cit. at pp. 7 and 8). In Walsh v Health Service Executive UD 501/2007, the Employment Appeals Tribunal confirmed that the “date of dismissal” in such a case is the date upon which a claimant submits his or her resignation and is not the date when the claimant is notified of acceptance of that resignation.” The Adjudication Officer in case reference ADJ-00006906 articulated the position definitely and correctly, when she observed that: “It is well established law that when one resigns from their employment, the notice period, in this case four weeks, is not added to the date of resignation. The date of termination is the date of the resignation… In Walsh v Health Service Executive the [Employment Appeals] Tribunal confirmed that the “date of dismissal” in such a case is the date upon which a Complainant submits his or her resignation and is not the date when the Complainant is notified of the acceptance of that resignation” Reliance on Minimum Notice and Terms of Employment Act 1973 is misplaced In his written submission dated 6 September 2021, the Complainant relies inter alia on the Minimum Notice and Terms of Employment Act 1973 (“the 1973 Act”). That reliance is, with respect, wholly misplaced. The 1973 Act does not apply in a case of constructive dismissal. This was made clear by the Supreme Court in its Judgment in Halal Meat Packers (Ballyhaunis) Limited v Employment Appeals Tribunal [1990] E.L.R. 49. The 1973 Act just does not arise in a constructive dismissal claim. Mistaken contention by Complainant that “offer and acceptance” analysis applies The Complainant - in his written submissions both on 24 August 2021 and on 6 September 2021 - places heavy emphasis on the fundamentally misconceived assertion that a resignation must be accepted before it takes effect. That is simply erroneous. The analysis of “offer and acceptance” upon which the Complainant has placed so much reliance is just, with respect, inapplicable, mistaken and irrelevant. A resignation takes effect without an employer having to accept it. Events post-dating the resignation email are, in essence, irrelevant. This too renders much of the Complainant’s written submission, with respect, irrelevant including his assertions (which are denied) to the effect that his resignation was not accepted or did not take effect until after 20 January 2020. Those assertions are unstateable but are, in any event, irrelevant in that the date of dismissal is the date of resignation. No question of the employer accepting or refusing to accept the resignation arises. It is erroneous to refer to there being a requirement upon the employer to accept a resignation. Resignation takes effect there and then, and it cannot be withdrawn without the employer’s consent. The Labour Court in the Keelings v Tamulynas (Determination No. HSD 191) case which has already been furnished by the Respondent, re-stated the following long-established principle: “The acceptance of the resignation by the employer is not required in order to determine the contract." The date of dismissal was quite obviously 20 January 2020. Accordingly, it is respectfully submitted that the WRC does not enjoy jurisdiction to hear this claim and the Respondent requests that the Adjudication Officer so decides. |
Findings and Conclusions:
The Complainant has lodged 31 complaints requiring adjudication. These 31 complaints may be broken down as follows: · Complaints submitted under s.27 of the Organisation of Working Time Act 1997 = 13 · Complaints submitted under s.45A of the Industrial Relations Act 1946 = 7 · Complaints submitted under s.6 of the Payment of Wages Act 1991 = 2 · Complaints submitted under s.7 of the Terms of Employment (Information) Act 1994 = 3 · Complaints submitted under s.8 of the Unfair Dismissals Act 1977 = 3 · Complaint submitted under s.24 of the National Minimum Wage Act 2000 = 1 · Complaint submitted under s.28 of the Safety, Health and Welfare at Work Act 2005 = 1 · Complaint submitted under s.39 of the Redundancy Payments Act 1969 = 1 The Respondent has submitted that these complaints are out of time. Organisation of Working Time Act 1997. Section 27 (4) of this act reads as follows: 27(4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. In the instant case the complainant submitted his complaints to the Workplace Relations Commission on 20th July 2020. By email sent to the Respondent on 20th January 2020 the Complainant resigned from employment. The cognisable period therefore runs from 20th January to 19th July 2020. The following complaints are deemed to be out of time and therefore cannot be entertained as they were not initiated within the applicable statutory time limit: CA – 00038831 – 004
CA – 00038831 – 005 CA – 00038831 – 006 CA – 00038831 – 007 CA – 00038831 – 008 CA – 00038831 – 009 CA – 00038831 – 010 CA – 00038831 – 011 CA – 00038831 – 017 CA – 00038831 – 018 CA – 00038831 – 030 CA – 00038831 – 031 CA – 00038831 – 032 Section 45A of the Industrial Relations Act 1946. 45A. A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of contravention of an employment regulation order in relation to a worker shall do one or more of the following, namely – a) Declare that the complaint was or, as the case may be, was not well founded, b) Require the employer to comply with the employment regulation order, or c) Require the employer to pay to the worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the worker’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act1977.
Complaints submitted under section 45A of the Industrial Relations Act of 1946 are heard under section 41 of the Workplace Relations Act 2015. Section 41 (6) of the Workplace Relations Act 2015 reads as follows: 41(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. In the instant case the complainant submitted his complaints to the Workplace Relations Commission on 20th July 2020. By email sent to the Respondent on 20th January 2020 the Complainant resigned from employment. The cognisable period therefore runs from 20th January to 19th July 2020. The following complaints are deemed to be out of time and therefore cannot be entertained as they were not initiated within the applicable statutory time limit: CA – 00038831 – 003
CA – 00038831 – 012
CA – 00038831 – 013
CA – 00038831 – 014
CA – 00038831 – 015
CA – 00038831 – 016
CA – 00038831 – 021
Payment of Wages Act 1991.
Complaints submitted under section 6 of the Payment of Wages Act 1991 are heard under section 41 of the Workplace Relations Act 2015. Section 41 (6) of the Workplace Relations Act 2015 reads as follows: 41(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. In the instant case the complainant submitted his complaints to the Workplace Relations Commission on 20th July 2020. By email sent to the Respondent on 20th January 2020 the Complainant resigned from employment. The cognisable period therefore runs from 20th January to 19th July 2020. The following complaints are deemed to be out of time and therefore cannot be entertained as they were not initiated within the applicable statutory time limit: CA – 00038831 – 001
CA – 00038831 – 002
Terms of Employment (Information) Act 1994.
The Complainant has submitted three complaints under this statute:
CA – 00038831 – 019 “I did not receive a statement in writing on my terms of employment (Terms of Employment (Information) Act 1994”.
Section 7 (3) of the Act reads as follows:
7(3) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the period of 6 months beginning on the date of termination of the employment concerned.
In the instant case the complainant submitted his complaints to the Workplace Relations Commission on 20th July 2020. By email sent to the Respondent on 20th January 2020 the Complainant resigned from employment. The cognisable period therefore runs from 20th January to 19th July 2020. The complaint as presented is deemed to be out of time and therefore cannot be entertained as it was not initiated within the applicable statutory time limit. CA – 00038831 – 020 “I was not notified in writing of a change to my terms of employment (Terms of Employment (Information) Act 1994)”.
In the instant case the complainant submitted his complaints to the Workplace Relations Commission on 20th July 2020. By email sent to the Respondent on 20th January 2020 the Complainant resigned from employment. The cognisable period therefore runs from 20th January to 19th July 2020. The complaint as presented is deemed to be out of time and therefore cannot be entertained as it was not initiated within the applicable statutory time limit. CA – 00038831 – 022 “I received a statement of my core terms which deliberately contain false or misleading information”.
In the instant case the complainant submitted his complaints to the Workplace Relations Commission on 20th July 2020. By email sent to the Respondent on 20th January 2020 the Complainant resigned from employment. The cognisable period therefore runs from 20th January to 19th July 2020. The complaint as presented is deemed to be out of time and therefore cannot be entertained as it was not initiated within the applicable statutory time limit. Unfair Dismissals Act 1977. The Complainant has submitted three complaints under this statute:
CA – 00038831 -023 “I was unfairly dismissed and have at least 12 months service (Unfair Dismissals Act)”. CA – 00038831 -024 “I had to leave my job due to the conduct of my employer or others at work and I have at least 12 months service”.
CA – 00038831 -025. “I had to leave my job due to the conduct of my employer or others at work due to Trade Union Membership; Pregnancy; exercising my rights to adoptive leave; exercising my right to force majeure leave; exercising my right under the National Minimum Wage Act; exercising my right the Carers Leave Act or exercising or proposing to exercise rights under the Protected Disclosures Act and I don’t have at least 12 months service”.
Section 8 (2) of the Unfair Dismissals Act (as amended) states the following:
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……
In the instant case the complainant submitted his complaints to the Workplace Relations Commission on 20th July 2020. By email sent to the Respondent on 20th January 2020 the Complainant resigned from employment. The cognisable period therefore runs from 20th January to 19th July 2020. These three complaints as presented are deemed to be out of time and therefore cannot be entertained as they were not initiated within the applicable statutory time limit. National Minimum Wage Act 2000. A complaint submitted under s.24 of the National Minimum Wage Act 2000. “I was penalised by my employer for invoking entitlements under the National Minimum Wage Act 2000”. Section 24(2) of this Act reads as follows: 24(2) A dispute cannot be referred to or dealt with by a rights commissioner - (a) Unless the employee – (i) Has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay period, or (ii) Having requested the statement, has not been provided with it within the time limited by that section for the employer to supply information,
And a period of 6 months (or such longer period, not exceeding 12 months, as the rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be. or (b) Where, in respect of the same alleged under-payment, the employer is or has been – (i) The subject of investigation by an inspector under section 33 or 34, or (ii) Prosecuted for an offence under section 35.
In the instant case the complainant submitted his complaints to the Workplace Relations Commission on 20th July 2020. By email sent to the Respondent on 20th January 2020 the Complainant resigned from employment. The cognisable period therefore runs from 20th January to 19th July 2020. This complaint as presented is deemed to be out of time and therefore cannot be entertained as it was not initiated within the applicable statutory time limit. Safety, Health and Welfare at Work Act 2005.
CA – 00038831 – 029 “I was penalised for complying with or making a complaint under the Safety, Health and Welfare at Work Act, 2005”. Section 28(4) of this Act states:
28(4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him or her within the period of 6 months beginning on the date of the contravention to which the complaint relates of such further period not exceeding 6 months as the rights commissioner considers reasonable.
In the instant case the complainant submitted his complaints to the Workplace Relations Commission on 20th July 2020. By email sent to the Respondent on 20th January 2020 the Complainant resigned from employment. The cognisable period therefore runs from 20th January to 19th July 2020. This complaint as presented is deemed to be out of time and therefore cannot be entertained as it was not initiated within the applicable statutory time limit. Redundancy Payments Act 1967.
CA – 00038831 – 033
“I did not receive any redundancy payment (Redundancy Payments Act, 1967).
The Complainant resigned from his employment – there was no redundancy.
This complaint is not well-found.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
As outlined above. |
Dated: 30/01/2025
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
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