EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Employee - appellant
against the recommendation of the Rights Commissioner in the case of:
Employer - respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. Lucey
Members: Mr J. Browne
Mr F. Dorgan
heard this appeal at Clonmel on 17th October 2013
Mr. Ronan Kennedy, Kennedy Frewen O'Sullivan, Solicitors,
St Michael Street, Tipperary Town, Co Tipperary
Ms Juanita Brennan, IR/HR Executive, IBEC South East
Region, Confederation House, Waterford Business Park, Cork
This appeal came before the Tribunal by way of an employee (the appellant) appealing a Rights Commissioner Recommendation (reference: r-101275-ud-10/GC) under the Unfair Dismissals Acts, 1977 to 2007.
The appellant submitted a date of termination on form T1B as the 26 May 2010. This was contested by the respondent who stated that the relevant date was 31 March 2010.
The respondent submitted that the Tribunal did not have jurisdiction to hear the claim as it was lodged outside the prescribed time limit as set out in S.8(2) of the Acts. The appellant resigned from his employment on 31 March 2010 and a P45 issued to him on that date. The claim under the Unfair Dismissals Acts was lodged with the Rights Commissioners on 7 October 2010. Furthermore the respondent submitted that exceptional circumstances did not exist to prevent the appellant from lodging within the specified six month time limit.
The respondent refuted the appellant’s contention that the company had continued to correspond with him until 26 May 2010. It was the appellant’s case that the Managing Director wrote a letter to him dated 6 April 2010 concerning a meeting scheduled for 15 April 2010 to discuss five issues and that he was clearly regarded by the company as an employee at that time. The letter was opened to the Tribunal and stated:
“You should note that failure to attend this meeting will be regarded as a serious disciplinary matter which could lead to serious sanctions, up to and including dismissal.”
By way of response the respondent submitted that the Managing Director had written this letter after the appellant had been reinstated following the overturning of a decision to dismiss him from his employment. The appellant was aware he had been reinstated by letter dated 25 March 2010 to his union representative. The meeting scheduled for 15 April 2010 was in relation to the sanction, if any, that would be applied to the appellant instead of dismissal. However, at the time of writing this letter the Managing Director was unaware that the appellant had resigned on 31 March 2010.
It was further submitted that the appellant was required to give one week’s notice of the termination of his employment to the employer bringing the appellant’s date of termination to 6/7 April 2010. The respondent submitted that employees are not required to provide notice in cases of constructive dismissal.
It was also submitted to the Tribunal that following a period of sick leave the appellant had returned to his position within the respondent company but was met with a number of changes regarding his position. The appellant was then absent for a second period of time with a different illness which was diagnosed as work-related stress. A letter from the appellant’s doctor dated 27 September 2013 was opened to the Tribunal and stated inter alia that due to a medical condition and work-related medical problems the appellant’s “..state of mind was such that he was unable to make submissions of any kind in the six months” after the termination of the employment.
It was submitted by the respondent in light of this letter that the appellant was well enough to attend a Labour Court hearing and give evidence at that hearing in June 2010. A written document was opened to the Tribunal in relation to this hearing. A witness for the respondent gave evidence that he was present at that hearing as was the appellant.
The appellant gave evidence that he did not attend a Labour Court hearing in 2010. He recalled attending the first hearing of the claim at the Rights Commissioner service in September 2009 and he recalled that both parties had appealed the finding but he did not attend a hearing at the Labour Court during 2010.
Determination on preliminary issue:
The Tribunal carefully considered the verbal and written submissions adduced by both parties.
The Tribunal found the appellant’s letter of resignation dated 31 March 2010 to be conclusive in terms of the effective date of termination of the employment.
The Tribunal heard diametrically opposing evidence from the parties in relation to whether or not the appellant was present at a Labour Court hearing in June 2010. The Tribunal preferred the evidence of the respondent’s witness in this regard.
The Tribunal does not find that exceptional circumstances existed which prevented the appellant from lodging within the six month timeframe and therefore the Tribunal cannot extend the specified six month time limit for claims under these Acts. The Tribunal therefore does not have jurisdiction to hear the claim under the Unfair Dismissals Acts, 1977 to 2007. Accordingly, the Recommendation of the Rights Commissioner (reference: r-101275-ud-10/GC) is upheld.
Sealed with the Seal of the
Employment Appeals Tribunal