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UDD213

FULL RECOMMENDATION

UD/19/224
ADJ-00016229 CA-00019664-001

DETERMINATION NO. UDD213

SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015

PARTIES :

BECTON DICKINSON PENEL LIMITED
(REPRESENTED BY A & L GOODBODY)

- AND -

MR PHILLIP GORING
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

Chairman:	Ms Jenkinson
Employer Member:	Ms Doyle
Worker Member:	Ms Tanham

SUBJECT:

1. Appeal of Adjudication Officer Decision No. ADJ-00016229 CA-00019664-001

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 13 November 2019 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 09 December 2020. The following is the Determination of the Court:-

DETERMINATION :

This is an appeal by Mr Philip Goring against the decision of the Adjudication Officer, ADJ-00016229, CA-00019664-001 in a claim of unfair dismissal against his former employer, Becton Dickinson Penel Limited, under the Unfair Dismissals Act 1977 - 2015 (“the Acts”). This claim was accompanied by a claim under the Minimum Notice and Terms of Employment Act 1973 – 2005.

For ease of reference the parties are given the same designations as they had at first instance. Hence Mr Philip Goring will be referred to as “the Complainant” and Becton Dickinson Penel Limited will be referred to as “the Respondent”.

The Adjudication Officer held that the Complainant’s complaint was out of time and therefore found that it was statute barred. He held that “While the Trade Union official’s absence may well explain the delay in submitting the complaint, it does not, in my view, offer an excuse for the delay which was approximately thirteen weeks outside of the six months statutory time frame.”

The Adjudication Officer heard the case on 20th June 2019 and his Decision was dated 15th October 2019. The Complainant appealed the WRC Decision on 12th November 2019.

Background

The Complainant commenced employment as a Flush Operator with the Respondent at its facility in Drogheda on 5th January 1987. His employment was terminated with immediate effect on 1st September 2017 on the grounds of gross misconduct. The dismissal was upheld on appeal by decision dated 25th October 2017. The claim was referred to the Workplace Relations Commission by SIPTU on behalf of the Complainant on 8th June 2018.

Preliminary Issue – Jurisdiction of the Court

Ms Lorna Lynch, B.L., instructed by A & L Goodbody Solicitors, on behalf of the Respondent raised a preliminary issue that the Court had no jurisdiction to hear the complaint as the Complainant’s claim under the Acts was submitted out of time and therefore was statute barred. Without prejudice to the preliminary issue, the Respondent denied that the Complainant’s dismissal was unfair.

The import of the submission advanced by the Respondent had the potential to deprive the Complainant of the necessary legal standing (locus standi) to pursue his claim, therefore the Court would have no jurisdiction to hear the substantive case under the Acts. In the interest of efficiency of process, the Court proposed to consider this issue as a preliminary matter, as it had the potential to be determinative of the appeal in its entirety. The parties agreed to proceed accordingly.

Position of the Parties on the Preliminary Issue

In support of its submission on the preliminary issue, the Respondent pointed out that the complaint was lodged with the Workplace Relations Commission (WRC) on 8th June 2018 whereas the Complainant was dismissed from his employment on 1st September 2017. Thus, without prejudice to its submission on the substantive case, it was submitted, the claim was lodged more than six-months since the alleged unfair dismissal. On that basis the Respondent contended that the complaint was out of time. Furthermore, Ms Lynch submitted that there were no reasonable grounds upon which the Court could extend the time for the making of this complaint.

Ms Lynch disputed the Complainant’s stated reasons for the delay. The Complainant maintained that the delay occurred when his trade union representative was out of the office due to illness at the time the claim should have been submitted and his supervisor was not aware of this, therefore, the claim was not lodged with the WRC in time. Ms Lynch contended it was incredible to believe that SIPTU, as the largest trade union in Ireland, did not have the resources or structures to properly deal with this matter on behalf of the Complainant in a timely fashion. She said that despite the Complainant’s ongoing representation by SIPTU, a complaint in relation to his dismissal was not filed with the WRC until 8th June 2018, which was more than 3 months outside the statutory 6-month time limit and more than 9 months after his employment had terminated. Furthermore, she stated that an application for an extension of time was not made for 10 months, despite WRC instruction an application should be made “as quickly as possible afterwards”. In that regard, she said that SIPTU finally made a submission to the WRC on 4th April 2019 as to the purported excuse for failing to present the complaint within the six-month statutory limit. This was nearly ten-months after the referral of the claims to the WRC, which themselves were referred nine months after the termination of the Complainant’s employment. This submission appeared to blame the late filing on a lack of internal communication and a failure of handing over tasks due to a SIPTU employee’s absence on sick leave.

Ms Lynch contended that this extreme delay was despite the fact that the Complainant had had the benefit of being advised at all times by SIPTU during the disciplinary process which lead to his dismissal.

The Complainant’s Position on the Preliminary Matter

In the first instance, Mr Pat O’Donoghue, B.L., SIPTU on behalf of the Complainant submitted that the claims referred to the WRC on 8th June 2018 were in time as he contended that the correct date of the dismissal was (a) the date on which the Complainant’s notice period should have expired and (b) the Complainant’s full notice period should have run from the date his contract was terminated, which was the date of the outcome of his appeal.

In support of this argument he relied upon “date of dismissal” as defined under the Acts, i.e. the date of dismissal is:

Section 1

(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 1973 Act”) 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,

He said that as the Complainant’s contract of employment did not contain a contractual notice period, therefore the statutory notice periods applied. At the time of dismissal, the Complainant had more than 30 years’ service, therefore he was entitled to eight weeks’ notice of the termination of his contract. As insufficient notice of the termination of the Complainant’s contract was in fact given, his date of dismissal is the date on which such notice period would have expired if it had been given i.e. eight weeks from the termination date which he argued was the date of the outcome of his appeal.

SIPTU referred to the Respondent’s argument that the Complainant was terminated for gross misconduct and that he was or should have been summarily dismissed. However, he stated that as the Complainant was not suspended throughout the disciplinary process and was paid almost three weeks’ notice on the termination of his employment, then these actions by the Respondent were not in compliance with its policy on findings of gross misconduct. Therefore, he contended that the Respondent did not consider the Complainant’s actions as constituting gross misconduct and the Complainant should have received his full statutory notice of eight weeks.

With reference to the ‘date of dismissal’, SIPTU cited Ann Marie Ryan v UPC Communications Ireland Limited UD13/2013 where the EAT held that the Complainant’s date of dismissal was the date of the outcome of her appeal of her dismissal:-

“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.”

This decision was appealed by the Respondent to the High Court in May 2017. The High Court dismissed the appeal, upholding the EATs statements above and adding 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.”

SIPTU said that the total length of time from the start of the investigation procedure to the outcome of his appeal took approximately five-months, therefore the Respondent did not deal with the incident expeditiously or as a matter of urgency to the Complainant’s detriment. Therefore, he submitted that the Court should find that the Complainant’s termination date was the date of the outcome of his appeal namely 25th October 2017. Moreover, he submitted that as the Complainant should have received his eight-week statutory notice period, in which case, his date of dismissal was 20th December 2017, and on that basis, the claims under the Acts were in time.

In the alternative SIPTU applied to extend the time limit by a further six months for “reasonable cause”. He explained that the Complainant had been assigned a representative from SIPTU who provided representation for him as a union member. It was this representative’s responsibility to submit any claims on the Complainant’s behalf to the WRC should this become necessary. Unfortunately, the representative became unable to perform his role due to illness which was not notified to his supervisor in line with normal practice. As a direct consequence, there was a short delay in the submission of the Complainant’s complaint. This representative subsequently resigned from the employment of SIPTU on 31st July 2018. Accordingly, SIPTU submitted that for these reasons, coupled with the premise that the Respondent will not be unduly prejudiced by a full hearing of the matter, an extension of time should be granted.

Conclusions of the Court on the Preliminary Issue

The conventional approach to statutory time limits in employment rights cases is that the failure of a Complainant to present a complaint in time deprives the Adjudication Officer, and this Court on appeal, of jurisdiction to hear the claim.

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 1^st September 2017, the day he was informed on that day that his employment was terminated with immediate effect, due to gross misconduct.

The Court is of the view that the Complainant cannot circumvent the time limits set out in the Acts by seeking to rely on an internal procedure that did not prevent him from bringing his complaint within the statutory time limit. The Court addressed the issue of the processing of an appeal in the context of time limits in Brothers of Charity Services Galway v Kieran O’Toole [EDA 177] where it held:-

“The Court cannot accept that deploying the Respondent’s internal procedures operated to prevent the Complainant from initiating the within complaints within the statutory time limit provided under the Acts.”

Therefore, the Court finds it difficult to see how his date of dismissal is other than 1^st September 2017, as notified to him at the meeting on that day and as stated by the Complainant in his claim form under the Act to the WRC.

While McDermott J. in the Ryan case, stated that the courts in this jurisdiction are not bound to follow English judicial decisions, he referred to the English Court of Appeal case, J. Sainsbury Limited v Savage [1981] ICR 1, where Brightman L.J. held that the effective date of termination in the case of instant dismissal was the date upon which the termination of the contract takes effect. Mc Dermott J. referred to the Respondent’s point 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. He held that the issue therefore falls to be determined by the appropriate courts.

The Court notes that in the Ryan case, the appeal process took a period of eleven months following the dismissal, thereby falling well outside the six-month time limit and close to the 12-month period allowable where an extension is granted. In the instant case, the appeal process took less than two months, and was till within the six-month time limit.

Section 8 of the Minimum Notice and Terms of Employment Act 1973 provides that an employer has a right to terminate a contract of employment without notice because of misconduct by an employee. While a payment in lieu of notice of two and a half weeks was paid, this does not alter the fact that 1^st September 2017 was his last day in the Respondent’s employment.

Even if the Court were to accept that his statutory entitlement to eight weeks-notice should extend his date of dismissal, and the Court is not making such a finding in this case, the Complainant’s claim to the WRC was still out of time.

Application for an extension of time

In the alternative to the Complainant’s first point, Mr O’Donoghue sought an extension of time, pursuant to Section 41(8) of the Workplace Relations Act 2015. In advancing that submission Counsel for the Complainant stated that the Complainant’s assigned trade union representative was responsible for submitting the claim, however, that representative became unable to perform his role due to illness, he did not notify his superior and subsequently resigned on 31st July 2018. Therefore, due to lack of communication and a failure to hand over to an alternative representative the Complainant’s claim was not referred to the WRC in time.

Mr O’Donoghue submitted that these circumstances meet the test of “reasonable cause” as set out in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll Determination WTC0338. This case set the established test for deciding if an extension should be granted for reasonable cause formulated by this Court. 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.
The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

Ms Lynch disputed the reasons given for the application. She stated that the Complainant had been represented throughout the disciplinary process which commenced in July 2017 and argued that SIPTU as the largest trade union in the country, should have had the resources or structures to properly deal with the Complainant’s case in a timely fashion. Yet it submitted the claim before the WRC nine months after his dismissal and a submission on the purported reasons for failing to represent the complaint in time on 4^th April 2019 was not submitted until almost ten months after the claim was referred, despite the WRC’s guidelines, that an extension application should be made “as quickly as possible afterwards”. During this time, the Respondent’s legal representatives were seeking details of the Complainant’s submission and application, none of which was forthcoming until 4^th April 2019.

The Court notes that the Complainant’s Union representative had represented him throughout the disciplinary process leading up to and during his dismissal and had represented him at the appeal of that decision. Furthermore, the Court notes that no evidence of the representative’s absence or the dates of such absence have been furnished to the Court.

The Court has carefully considered the application submitted on behalf of the Complainant. The sole reason put forward for the delay related to the fact that his Union failed to refer such a claim on time, i.e. before 28^th February 2018. The claim was not referred to the WRC until 8^th June 2018, however, it is notable that this was prior to the Complainant’s representative resigning. At which point an application for an extension of time was also made. It is striking that having made an application for an extension of time due to the late referral, the submission outlining the rationale for that application was not made until 4th April 2019, this was almost ten months after lodging the appeal and over 20 months after the dismissal.

The Court has consistently taken the approach that it is the Applicant to establish that there is reasonable cause for the delay. It is well settled that an application for an extension of time must both explain the delay and provide a justifiable excuse for the delay. Having considered the submissions advanced in the course of the appeal, the Court cannot accept that the absence of a trade union representative from such a large union is sufficient to explain the delay and to prevent the claim being submitted in time. The Court is also influenced by the length of time taken to submit its explanations for the delay so that the claim could commence its process. In all the circumstances, the Court is of the view that the parties to the claim were entitled to have it progressed in a timely fashion and not be delayed to such an extent that it “impeded the right to natural and effective justice”. Having regard to all the circumstances of this case the Court has come to the conclusion that a justifiable basis upon which an extension of time could be granted has not been put forward in this case.

Determination

The Court finds that the reasons provided by the Complainant are not sufficient to demonstrate reasonable cause for the delay in filing the claims with the WRC, as required under Section 41(8) of the Workplace Relations Act 2015.

Therefore, the Court finds that the within claim was out of time when it was presented to the Workplace Relations Commission on 8^th June 2018 and is accordingly statute barred. In these circumstances, the Court cannot proceed to hear the substantive matter.

The Complainant’s appeal is rejected, and the Decision of the Adjudication Officer is upheld.

The Court so Determines.

	Signed on behalf of the Labour Court

	Caroline Jenkinson
OC	______________________
07 January 2021	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary.