UDD2635

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No.: ADJ-00047435 (CA-00057610-001)

BACKGROUND:

The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 24 November 2024 in accordance with Section 8A of the Unfair Dismissals Act, 1977 to 2015. A Labour Court hearing took place on 21 July 2026.

The following is the Decision of the Court.

DECISION:

1. Appeal Details

This is an appeal by Mr Muhammad Usman Zafar against a Decision of an Adjudication Officer (ADJ-00047435/CA-00057610-001) made under the Unfair Dismissals Act, 1977 to 2015 (the UD Act) in a complaint against Tesco Ireland. The Adjudication Officer’s decision, dated 15 October 2024, found that the complaint was out of time and not well founded.

For ease, the parties are referred to in the same way as at first instance, so Mr Zafar is referred to as “the Complainant” and Tesco Ireland as “the Respondent”.

At the hearing of the Court on 21 July 2026 in Dublin, the Complainant was unrepresented and unaccompanied. The Respondent was represented by Ms Emily Maverley from Ibec. The Court received written submissions from both parties in advance of the hearing and heard oral submissions from both parties at the hearing. The Complainant gave evidence under oath and was cross examined by the Respondent’s representative.

2. Summary of the Respondent’s Submission

The Respondent said that the Complainant was employed as a customer assistant on nights since 8 March 2021, working 30-35 hours per week at a rate of €14.60 per hour. The Respondent was aware that he was also working a second job for a different employer.

The Respondent’s position was that the Complainant had verbally resigned his employment on 26 November 2022 following a meeting in which the Complainant’s application for a career break was refused. He did not attend work after that date and his last date of work was 20 November 2022. Efforts were made to contact the Complainant by telephone thereafter but to no avail. A registered letter was sent to the Complainant’s home address on 16 December 2022, which was signed for as received, noting the Complainant’s expressed wish to resign and asking him to confirm his resignation in writing. The letter also afforded the Complainant the opportunity to contact the Respondent within seven days if he did not wish to resign. No response was received from the Complainant to that letter. The Complainant was registered as a leaver with Revenue on 16 January 2023 with a leaving date of 26 November 2022.  The Complainant made no contact with the Respondent until an email of 13 April 2023 where he sought to return to work

The Respondent disputed that the Complainant had been dismissed. Further, in circumstances where the last date of employment was 26 November 2022 the Complainant’s claim was statute barred having only been submitted to the WRC on 9 July 2023, outside the time limits set out in section 8(2) of the UD Act.

3. Summary of the Complainant’s Submission

The Complainant said that he was employed by Respondent since March 2021. In or around August 2022 the Complainant applied for a career break to undertake a course of study, which was not approved by the Respondent. In a meeting on 26 November 2022 the Complainant said that the Respondent still refused his application for a career break despite him explaining that he had been granted a place on the course on scholarship so that the course was free for him. He informed the Respondent that “I only have one way, which is to leave that job because I can’t leave the scholarship”.  The Complainant said he did not receive any written correspondence from the Respondent in December 2022. He said he was in touch with the store on 17 December 2022 to let them know he had Covid.

After completion of his course, the Complainant went to the Respondent’s store on 12 April 2023, following up by email on 13 April 2023, to “let them know I wanted to come back to work”. He said the Respondent’s response was that his employment had been terminated after he had informed the Respondent of his wish to resign. The Complainant denied having resigned noting that he had not provided a letter of resignation.

The Complainant said that in or around two months later he met a family friend who advised him to contact the Workplace Relations Commission (WRC). The Complainant said the WRC advised him that he was out of time for bringing a claim but that an extension of time could be granted. The Complainant said that he was not aware of his rights in Ireland as he had come from Pakistan where he said one has no recourse for termination of employment. The Complainant’s WRC form, submitted on 9 July 2023, referenced 15 December 2022 as the date of dismissal.

4. Summary of the Complainant’s Evidence

The Complainant gave evidence under oath. The Complainant confirmed his employment with the Respondent and that he was also employed by M&S at the time. He was granted a career break from M&S to undertake the course and resumed his employment thereafter and remains employed there. The Complainant gave evidence of wanting to take a career break from the Respondent and that he believed it was being positively considered but it was refused. He confirmed that he had informed the Respondent verbally, in the meeting of 26 November 2022 when the refusal was confirmed, that he had “only one option which is to resign” and that he “would like to resign”. He confirmed that the last day he worked in the Respondent was 20 November 2022 and that he was not in touch with the Respondent between 17 December 2022 and his oral evidence that he returned on [14] April 2023. The Complainant denied receiving any registered letters and said neither he nor anyone in his family had signed for the letters but confirmed they were correctly addressed. The Complainant confirmed that he had no conversations with HR after 26 November 2022.

In response to cross examination, the Complainant said that he had not lodged a grievance about the refusal of his career break application as he felt he was not being listened to. The Complainant was vague in his evidence as to when his course finished but confirmed that he took holidays in Pakistan in March 2022. He variously said he was unsure when the course finished, then said it finished at the start of April and then mid-late March. In correspondence with the WRC he confirmed that the course finished in February 2022 and that he took four weeks holidays to Pakistan after that. The Complainant confirmed that he had not contacted anyone in the Respondent regarding taking annual leave which it was put to him contradicted his assertion that he considered he was still an employee of the Respondent.

In answer to questions from the Court the Complainant said that he did not recall when he was next rostered after 26 November 2022 but confirmed he did not show up to work. He said he did not receive any payslips after end November/start December 2022.

The Complainant said that between April 2023 and October 2023 he was continuously applying for jobs in both retail and IT, via LinkedIn and Indeed and through course contacts. He said he continued working for M&S on a part-time basis but his request for additional hours was denied. In October 2023 the Complainant obtained a position in IT support for a company based in ParkWest as a result of having taken the course and he intended to stay working in IT. He was undertaking a Masters in cybersecurity. The Complainant was seeking compensation for his losses from April 2023 to October 2023.

5. Relevant Legislation

Section 1 of the UD Act, sets out definitions of “contract of employment”, “employee”, “employer”, “dismissal” and “date of dismissal”, the relevant elements of which are set out below.

“Contract of employment” is defined as meaning “a contract of service or of apprenticeship, whether it is express or implied and (if it is express) whether orally or in writing”.

“Employee” is defined as meaning: “an individual who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment …”.

“Employer”, in relation to an employee, means: “the person by whom the employee is (or, in a case where the employment has ceased, was) employed under a contract of employment …”.

“Dismissal”, in relation to an employee, means:

• (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,
• (b) the termination of the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, …”.

“Date of dismissal” means:

“(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

(b) 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,…”.

Section 6(1) of the UD Act provides:

"Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal."

Section 6(4) of the UD Act provides:

"Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:…

(c) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(d) the conduct of the employee,

(e) the redundancy of the employee, and

(f) the employee being unable to work or continue to work in the position which he held without contravention (by him or his employer) of a duty or restriction imposed by or under any statute or any instrument made under statute."

Section 6(7) of the UD Act provides:

"Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so -

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act."

Section 8(2) of the UD Act 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 [the Workplace Relations Act, 2015] to the Director General-

(a) within the period of 6 months beginning on the 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, …”

Rule 54 of the Labour Court Rules 2024 provides that: -

“The Court may, in its discretion, give a preliminary ruling on any aspect of the case where it is satisfied that time and expense may be saved by the giving of such a ruling and/or where it has the potential to be determinative of the case”.

6. Deliberations

The fact of dismissal was in dispute between the parties. The Complainant’s position was that he had been unfairly dismissed by the Respondent and noted the date of dismissal as 15 December 2022 on his WRC complaint form. The Respondent contended that the Complainant had resigned on 26 November 2022 and that there was no dismissal.

The Respondent made a submission that the Complainant’s claim had been submitted outside of the time limit set out in section 8(2)(b) of the UD Act and that the Court should determine the matter on that preliminary issue on the basis that it would be potentially determinative of the entire issue before the Court thereby saving time and costs. The Court was of the view that the first issue to be determined was whether or not a dismissal took place before going on to consider other factors. The Court considered that any determination as to whether the claim was initiated outside the statutory time limits only arose after that first issue was decided. With the agreement of the parties the Court decided that it would determine whether the Complainant was dismissed as a preliminary issue before considering the time limit issue. If those matters were resolved in favour of the Complainant, the substantive matter would then be relisted for hearing.

The definition of dismissal is clear and provides for either the employer terminating the employee’s contract of employment or the employee terminating their own contract of employment in circumstances which amount to constructive dismissal. Despite submissions from the Respondent on the burden of proof for constructive dismissal the Court was satisfied that no issue of constructive dismissal arose. To the contrary the Complainant’s position was that he had not resigned his employment with the Respondent.

The Court is satisfied that the Respondent did not dismiss the Complainant. Rather the Respondent treated the Complainant as having resigned in circumstances where in his own evidence he demonstrated that he used clear words that he was resigning and where thereafter he did not attend work for a period of almost five months. The Complainant relies on not having provided a written letter of resignation as demonstrating that he did not resign. The Court does not accept this proposition. The Respondent made efforts to communicate with the Complainant after he used the clear words of resignation. The Complainant was afforded the opportunity to either confirm his resignation in writing or alternatively to notify the Respondent as a matter of urgency if he did not wish to resign. He did neither. The Complainant’s evidence to the Court was that he did not receive the letter despite it being correctly addressed and having been signed for. He also gave contradictory evidence that he had contacted the Respondent within two days of receiving the letter (purportedly to advise that he had Covid) so therefore indicating he was not resigning, while also maintaining that he had not (at that time) received the letter. There was not much more the Respondent could have done other than send a registered letter providing the Complainant with options. The Respondent’s conduct appeared reasonable to the Court.

The Respondent did not act with undue haste. It afforded the Complainant the opportunity to resile from his clear words of resignation and even having put a seven-day time limit in place it did not take steps to give effect to the resignation by processing him as a leaver until 16 January 2023. The Complainant gave no satisfactory explanation for how he considered that he remained an employee despite having no contact whatsoever with the Respondent for over four months. The Complainant knew he was not on a career break and even if was absent without leave (which was not evidenced) it was not unreasonable for the Respondent to have treated him as though he had resigned in circumstances where he had expressly verbally resigned, made no contact with the Respondent for four months and where he did not respond to the Respondent’s efforts to contact him. The Court is satisfied that the Complainant was not dismissed by the Respondent but that the Complainant resigned his employment with effect from 26 November 2022, which resignation was accepted by the Respondent.

Where no dismissal took place it is not strictly necessary for the Court to consider the issue of time limits. However, for the avoidance of doubt, the Court notes that the Complainant only submitted his claim for redress to the WRC on 9 July 2023 which was outside the time limit provided for in the UD Act whether based on 26 November 2023, his last date of employment, or 15 December 2023 which was the “date of dismissal” relied on by the Complainant. The Complainant relied on a lack of understanding of his legal rights as the reason why he did not submit his claim to the WRC within time and only did so when a friend alerted him to the possibility in circumstances where he maintained that in Pakistan, where he was from, one has no legal recourse for termination of employment. The Complainant also said that he had been assaulted in July 2023 which delayed bringing his claim but in his email communication to the WRC that assault appeared to post date the date the claim was filed.

The Complainant was fully aware from mid-April 2023 that the Respondent considered his employment had terminated on 26 November 2022. A cursory enquiry, such as he carried out in July 2023, would have yielded information regarding his legal rights in respect of what he subsequently claimed to be an unfair dismissal. A claim submitted at that time would have been within time. This Court has consistently held that ignorance of one’s legal rights, as opposed to the facts giving rise to those rights, cannot be accepted as an excuse for not observing the statutory time limit. The Complainant has not provided any reasonable cause for which time should be extended beyond the six-month statutory time limit. The Court concludes that the within complaint was submitted to the WRC outside the statutory time limit and that the failure by the Complainant to submit his claim in time deprived the WRC of jurisdiction to investigate the complaint.

7. Decision

In assessing the evidence before it, the Court concludes that the Complainant resigned his employment with the Respondent on 26 November 2022. The words used were unequivocal and repeated in evidence before the Court. The Respondent afforded the Complainant the opportunity to resile from his resignation, but when no response was received from him the Respondent processed him as a leaver. The Complainant was not dismissed by the Respondent so there was no dismissal within the meaning of the UD Act. It follows therefore that the Complainant’s claim for unfair dismissal is not well-founded. Without prejudice to the foregoing, the Complainant’s claim was also out of time depriving the WRC (and this Court on appeal) the jurisdiction to investigate the complaint.

In accordance with the provisions of section 8A(2)(a)(ii) of the UD Acts the Court affirms the decision of the Adjudication Officer, bearing reference numbers ADJ-00047435 and CA-00057610-001 is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Niamh McGowan
AM	______________________
24/09/2026	Deputy Chairman

NOTE

Enquiries concerning this Decision should be in writing and addressed to Ms Áine Maunsell, Court Secretary.