Complainant

Respondent

Parties

Ibrahim  Waziri

Tesco Ireland Limited

Representatives

Francis Stafford Quinn BL at the first hearing and Olaniyi Oriande BL at the second hearing, instructed by Kevin Tunney Solicitors

Dajana Sinik IBEC

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-00065453-001

16/08/2024

The complaint relates to an alleged unfair dismissal. The complaint was submitted to the Workplace Relations Commission (hereinafter referred to as “the WRC”) on the 16th August 2024.

The Complainant relied on the narrative set out in the WRC complaint form and the written submissions dated the 18th December 2024 submitted on his behalf to the WRC.

The Complainant stated that he commenced employment with the Respondent on the 22nd January 2007. The last day he worked was in 2016 and he received two payments in 2018, €319.53 on the 14th June 2018 and €34.25 on the 9th August 2018.

The Complainant stated that between the 3rd and the 5th April 2023 he engaged in email communication with the Respondent and that he found out on the 5th April 2023 that his employment was terminated in 2020. He did not accept the dismissal because he was not afforded an opportunity to engage in the dismissal process and he was never furnished with a formal letter of notice of termination.

Under cross-examination the Complainant confirmed that he was informed by the Respondent on the 5th April 2023 that his employment was terminated in 2020 and that as of the 5th April 2023 he was on notice of his dismissal.

It was submitted on behalf of the Complainant that the WRC has jurisdiction to adjudicate on the complaint because the dismissal was a unilateral dismissal carried out without the Complainant having an opportunity to participate in the process and consequently was in breach of fair procedures and natural law. It was further submitted that the operative date was when the dismissal was brought to the Complainant’s attention, namely the 5th April 2023 as before that date he was not on notice that his employment had been terminated by the Respondent.

By way of preliminary objection the Respondent submitted that the Complainant’s complaint under the Unfair Dismissals Act 1977 (as amended) was statute barred. The Respondent noted that the last day the Complainant attended work with the Respondent was the 1st February 2016 and that his final payslip was dated the 11th August 2018 when he received back pay owed to him. Due to an administrative error the Complainant’s termination date with the Respondent was only processed on the 22nd June 2020.

The Respondent submitted that regardless of which date was taken as the effective date of dismissal - whether the 22nd June 2020 when his termination was processed by the Respondent, the 11th May 2020 the date of dismissal included on the WRC complaint form or the 5th April 2023 the  date the Complainant was notified by the Respondent that his employment terminated in 2020, all three dates fell outside of the cognisable period rendering the complaint out of time and as such the Adjudication Officer did not have jurisdiction.  

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

Preliminary Decisions:

In Brothers of Charity (Roscommon) Ltd. v. Marian Keigher EDA1014, the Labour Court considered the determination of an issue by way of preliminary decision. The Labour Court referred to the judgments of Kenny J. in Tara Explorations and Development Co. Ltd v. Minister for Industry and Commerce [1975] IR 242 and Hardiman J. in B.T.F. v. Director of Public Prosecutions [2005] 2 I.L.R.M. 367. In the latter case Hardiman J, found:

"It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary matter. In a case where a point is raised which in and of itself and without regard to anything else may terminate the whole proceedings, clearly a strong case can be made for its trial as a preliminary issue. The classic example is where the Statute of Limitations is pleaded.”

In Donegal Meat Processors v. Donal Gillespie t/a Foyle Donegal, UDD2114, the Labour Court noted that, seeking for the substantive issue and the jurisdictional issue to be dealt with together was:

“akin to asking the court to exercise its jurisdiction before it determines whether or not it has jurisdiction in the first instance. […] Only if the court determines that it has jurisdiction to do so can it go on to consider the fairness or otherwise of the dismissal itself”.

Following the caselaw outlined above I find that there is a “strong case” for determining this matter by way of preliminary decision.

Preliminary Issue: Time Limits

The first matter I must decide is whether the complaint was referred to the WRC within the statutory time limit set out in the Unfair Dismissals Act 1977 (as amended) (hereinafter referred to as “the 1977 Act”).

It was common case that the Complainant commenced employment with the Respondent on the 22nd January 2007 and that he was employed as a Security General Operative / Customer Sales Assistant. His last day of work with the Respondent was the 1st February 2016 and he received back pay due and owing to him on the 9th August 2018 (payslip dated 11th August 2018).

The Respondent’s representative stated that despite the foregoing, due to an administrative error the Complainant’s termination date with the Respondent was not processed until the 22nd June 2020.

Whilst the Complainant was particularly aggrieved by the fact that he was never furnished with a “formal notice of termination letter”, he confirmed in evidence that between the 3rd April 2023 and the 5th April 2023 he engaged in email communication with the Respondent’s Lead People Partner for Convenience and that on the 5th April 2023 he was put on notice of the fact that his employment with the Respondent had been terminated with effect from 2020.  

The Complainant stated that upon being informed that his employment with the Respondent had been terminated he made efforts to seek the support and guidance of his trade union and thereafter from legal representatives. He referred his complaint to the WRC on the 16th August 2024.

The relevant time limits for the referral of a complaint to the WRC under the 1977 Act are provided for in section 8(2) of the 1977 Act as follows:

“(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 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 Respondent concerned as soon as may be after the receipt of the notice by the Director General.”

The Respondent referred to Mary Sheehy v. Most Reverend James Moriarty UD1264/2008 wherein the Employment Appeals Tribunal held that ‘’the Tribunal was set up under statute by the Oireachtas and did not have the authority based on constitutional or natural law and justice principles to conduct a hearing’’ where ‘’the claims were not instituted within the time periods set out in the legislation’’. Similarly, the WRC was set under statute by the Oireachtas and I find that I do not have the authority based on constitutional or natural law and justice principles to conduct a hearing where the complaint was not referred to the WRC within the time periods set out in the legislation.

In the within complaint, on the WRC complaint form the Complainant stated that he was dismissed on the 11th May 2020. The Respondent submitted that the Complainant’s termination date was the 22nd June 2020. At the hearing the Complainant gave evidence that on the 5th April 2023 he was put on notice by the Respondent that his employment terminated in 2020. The Complainant’s representative submitted that the operative date was when the dismissal was brought to the Complainant’s attention, namely the 5th April 2023. Even if I were to accept that submission, the outer time limit for the referral of a complaint to the WRC would have been the 4th April 2024. The complaint was not referred to the WRC until the 16th August 2024.

On the basis of the foregoing I find that I do not have jurisdiction to adjudicate on the complaint as it is out of time and therefore statute barred.

For the reasons set out above I decide that this complaint was referred outside the statutory time frame pursuant to section 8(2)(a) and (b) of the Unfair Dismissals Act 1977 (as amended) for referring a complaint to the Director and therefore I have no jurisdiction in the matter. 

In the circumstances the complaint is not well founded.