ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000882
Complaints for Resolution:
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-00001053-001 |
24th November 2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act 1994 |
CA-00001053-002 |
24th November 2015 |
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Date of Adjudication Hearing: 8th March 2016 and 6th April 2016
Workplace Relations Commission Adjudication Officer: Seán Reilly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act 2015, Section 8 of the Unfair Dismissals Acts 1977 and Section 7 of the Terms of Employment (Information) Act 1994, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. The complaint under Section 39 of the Redundancy Payments Act 1967 was withdrawn at the Hearing (CA-00001053-003 refers).
The Complainant was employed by the Respondent from 14th July 2009, there was dispute about the date the employment terminated, which is elaborated on below, and her rate of pay was €150.00c per week. The Complainant was submitting that she had been constructively dismissed by the Respondent and that the Respondent had failed to provide her with written statement of the particulars of her terms and conditions of employment in accordance with the provisions of Section 3 of the Terms of Employment (Information) Act 1994.
Preliminary Issue:
A preliminary issue arose as to the date the Complainant’s employment with the Respondent ended and accordingly if the complaints were presented within the normal 6 month time limit for the presentation of complaints
The Respondent said that the Complainant’s employment with them ended on 26th February 2015, which they said meant that any complaint would have to have been presented to the WRC on or before 25th August 2015, but it was not presented until 24th November 2015. The Respondent said that even if the date of the resignation was considered to be 12th May 2015 the complaints were still outside the 6 month time limits for the presentation of complaints and the Respondent said there was no reasonable cause that caused the failure to present the complaint at an earlier date. The Respondent said the Complainant was emphatic in her resignation, the fact of the Complainant’s resignation was repeatedly confirmed by her Solicitor; in that respect the Respondent pointed to the Complainant’s Solicitor’s letters of 26th February 2015, 5th May 2015 and 12th May 2015. The Respondent said that the second of these letters, the one of 5th May 2015, states “Our Client therefore considers herself as having been constructively dismissed and will now bring proceedings under the Unfair Dismissals Acts.” In due course we will submit the form to the Employment Appeals Tribunal seeking a hearing in that regard.” The letter of 12th May states:
“We do not understand how you could in any way be surprised that our client has deemed herself to be constructively dismissed. We clearly set out in our letter dated the 26th February 2015 to (a named person) your Representative at the time, our client’s view in relation to this matter and the legal position” and further
“The decision was made for her on 3rd February 2015, by the pre-emptive action of you her employers and there is no way back in that regard. ……….
Our client has been left with no choice in this regard and she believes that there is absolutely no basis on which she can return to her employment with (the named Respondent) arising out of the way she was treated on the evening of the 3rd February 2015 and the perception that has created in the Public’s mind.
All of out client’s complainants in relation to this matter are set out very clearly in that five page letter and these will be the basis of out client’s claim to the Employment Appeals Tribunal……..”
The Respondent said that plainly the Complainant had terminated her employment with them in unambiguous terms on either 26th February 2015, 5th May 2015 or at the very latest 12th May 2015. The Respondent said the complaints are outside the time limits laid down for the presentation of complainants and accordingly cannot be entertained by the Adjudication Officer.
The Complaint said that her employment with the Respondent ended on 27th May 2015 and that accordingly the complaint presented on 24th November 2015 was within the 6 month time limit laid down for the presentation of complaints. The Complainant said that her P45 presented to her by the Respondent states her date of cessation of employment as 27th May 2015. The Complainant referred to a letter from the Respondent of 28th April 2015 in which they said the Respondent stated they considered her to still be an employee. The Complainant further stated that she received pay statements from the Respondent up to 14th July in which are stated basic pay and pay and submitted that the Respondent could only be paying her in her capacity as a employee, so she must have still been an employee at that stage. The Complainant submitted that her complaint was within the 6 month time limits as laid down for the presentation of complaints and accordingly she was entitled to have her complaint heard.
The Complainant said that without prejudice to the foregoing and in the alternative she would submit that in accordance with the provisions of Section 8(2) of the Unfair Dismissals Act 1977 and Section 41(8) of the Workplace Relations Act 2015 the “failure to present the complaint within that (6 month) period was due to reasonable cause” and that accordingly the normal 6 month time limit should be extended by a further 6 months. The Complainant submitted that the fact that the Respondent was indicating that they did not accept her resignation constituted “reasonable cause” that explained and justified the delay in presenting her complaint at an earlier date and that justified granting an extension in accordance with the provisions of Section 8(2) of the Unfair Dismissals Act 1977 and Section 41(8) of the Workplace Relations Act 2015.
Findings and Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Act, 1977 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.
Section 7(2) of the Terms of Employment (Information) Act 1994 that I make a decision in relation to the complaint in accordance with the relevant redress provisions of the same Section of the Act.
Preliminary Issues:
I have carefully considered the evidence and the submissions of both parties in relation to the preliminary issue and I have concluded as follows.
I note that this is a case for constructive dismissal and accordingly the (first) question that arises is when did the Complainant resign or terminate her employment from the Respondent.
I have examined the correspondence between the parties in this respect. I note that the Complainant did not write directly to the Respondent but rather had her Solicitor write/communicate on her behalf. Plainly had the Complainant written an unambiguous letter of resignation, as would be normal practice in such cases, there would be no issue as to when her employment terminated, however in the absence of such a resignation letter I must consider the correspondence between her Solicitor, acting on her behalf, and the Respondent.
In her letter of 26th February 2015, the Complainant’s Solicitor states that the Respondent’s actions “amounts to the constructive dismissal of our client”. I note that this is in effect stating that the Complainant was at that date constructively dismissed and it is certainly open to the interpretation that she considered that her employment with the Respondent ended or terminated on 26th February 2015.
In their letter of response to this letter the Respondent seeks clarity in that respect stating:
“You have outlined in your letter that you consider your client to have been constructively dismissed. We continue to consider (the Complainant) as an employee and have received no such indication to the contrary from her. As outlined above, we would askthat you clarify your statement and confirm that (the Complainant) remains an employee of the (Respondent) or in the alternative provide us with written confirmation from your client to thecontrary”
Plainly this letter is simply and perfectly reasonably seeking clarification of what the position is and nothing more can be read into it than that.
Following a further letter from the Complainant’s Solicitor of 13th April, which does not respond to the above request for clarification from the Respondent, the Respondent again wrote to the Solicitor on 28th April 2015 and states inter alia“Most importantly, your letter dated 26th February 2015 makes reference on at least two occasions to the fact that your client considers herself to have been constructively dismissed or that you consider to be so. In our response to you we specifically have asked you to confirm whether this is the case as we do not consider her to have been so dismissed and we consider her to remain an employee. We have sought clarification from you on this point and you have not responded. We would ask you to address this issue by return as a matter of urgency.” Once again the Respondent is seeking clarification in unambiguous terms of what the position is relation to the Complainant.
The Complainant’s Solicitor responded by letter of 5th May 2015, in which she states inter alia: “Our client believes that it would be totally impossible for her to return to work in the shop under such a cloud even if an investigation was carried out and she was reinstated” and it further states:
“Our client therefore considers herself as having been Constructively Dismissed and will now bring proceedings under the Unfair Dismissal Act. We presume that you will now furnish her with her P45 and pay any outstandingmonies arising as a result of holidays not taken during the entire period of her employment with you.
In due course we will submit the form to the Employment Appeals Tribunal seeking a hearing in that regard.”
The letter is crystal clear and beyond any misunderstanding that the Complainant’s employment with the Respondent is terminated by her. Whatever doubt (if any) there was about the letter of 26th February 2015 is totally removed by the contents of this letter.
Firstly the letter states the Complainant’s belief that it would be “totally impossible for her to return to work” thus confirming that her employment with the Respondent has ended/terminated. The following paragraph is even more firm in that respect stating the Complainant considers herself as having been constructively dismissed accordingly her employment must have terminated, how else could she be constructively dismissed? She further states she will now bring proceedings under the Unfair Dismissal Act; she could not do this or make this statement if her employment had not terminated. She seeks her P45, Cessation of Employment Certificate, further confirming her employment has terminated. She further seeks payment in respect of any accrued untaken holidays and again it is not legally possible to receive payment in lieu of annual leave save where the employment has terminated and this is a well established legal fact. The Letter concludes that in due course a form to the Employment Appeals Tribunal will be submitted seeking a hearing again confirming the employment has terminated.
No reasonable or rational person could interpret this other than that the Complainant considered herself constructively dismissed and had terminated her employment at the latest on 5th May 2015.
The Respondent responded to this letter by letter of 8th May 2015, stating: “We are surprised that your client has confirmed through you that she considers herself to be constructively dismissed. We are not happy to accept your client’s resignation at this point in time and would urge her to take a week and reconsider her position. Her resignation is a very serious matter especially in light of the fact that the proposed investigation never commenced due to her period of sick leave nor has your client ever submitted a formal or informal grievance.
We would therefore advise you to consult with your client to ask her to reconsider her resignation”
This was not, as implied or stated by the Complainant, the Respondent indicating or stating that they did not accept the Complainant’s resignation, rather they were simply, as any responsible employer should do, affording the Complainant the opportunity to think again about her resignation.
The Complainant’s Solicitor responded to this by letter of 12th May in which is stated:
“We do not understand how you could in any way be surprised that out client has deemed herself to be constructively dismissed. We clearly set out in our letter dated the 26th February 2015 to (a named person) your Representative at the time out client’s view in relation to this matter and the legal position.
We enclose a copy of that letter for your attention.
The decision was made for her on the 3rd February 2015 by the pre-emptive action of you her employers and there is no way back in that regard. …….
Our client has been left with no choice in this regard and she believes that there is absolutely no basis on which she can return to her employment with the (Respondent) arising out of the way she was treated on the evening of 3rd February 2015 and the perception that has created in the Public’s mind.
All our client’s complaints in relation to this matter are set out very clearly in that five page letter and these will be the basis of our client’s claim to the Employment Appeals Tribunal. …….
The letter finishes with a further request for the Complainant’s P45 and any outstanding monies.
This letter simply reconfirms, in even stronger language, what was contained in the earlier one of 5th May 2015. Indeed it twice states that the decision had been made for her on 3rd February 2015 (some 3 months earlier).
The Respondent responded by letter of 27th May 2015, simply acknowledging the position.
Based on the foregoing I have concluded that the Complainant’s employment with the Respondent terminated at the latest on 5th May 2015, when her Solicitor confirmed in the most unambiguous terms that the Complainant’s employment with the Respondent had terminated. This means that the complaint was not presented to the WRC within the 6 month time limit as laid down in Section 8(2) of the Unfair Dismissals Act 1977 and Section 41(6) of the Workplace Relation Act 2015 for the presentation of complaints.
I am now going on to consider if I am satisfied that, in accordance with Section 8(2) of the Unfair Dismissals Act 1977 and Section 41(8) of the Workplace Relations Act 2015, that “the failure to present the complaint within that period (6 months) was due to reasonable cause.”
In this respect I note that the Complainant was professionally represented in these matters and accordingly she through her Representative, would be fully aware of the 6 month time limits for the referral of complaints under both Acts, which has been in place since both Acts were enacted in 1977 and 1994 respectively.
The Complainant submits that the reason the complaints were not presented to the WRC earlier was because the Respondent was indicating that they did not accept her resignation. This is not correct; the Respondent never stated that they did not accept the Complainant’s resignation. They did once ask for clarification and once afforded the Complainant the opportunity to reconsider her resignation, which through her Solicitor she rejected; however that is an entirely different matter. In addition I do not accept that even had the Respondent stated they did not accept the resignation this would in any way prevent or delay the presentation of complaints, to suggest otherwise is to suggest that an employer could delay or prevent a complaint for constructive dismissal proceeding by the simple expedient of refusing to accept the resignation. An employer does not have a veto on an employee’s resignation. This submission does not make sense, is not reasonable, it is without merit and is rejected by me.
It is difficult to understand why, having decided no later than 5th May 2015, that she had been constructively dismissed, and confirming this fact in writing to the Respondent and her intention to “now bring proceedings under the Unfair Dismissals Act”, the Complainant and her Representative waited a further 29 weeks before submitting her complaints on 24th November 2015. Certainly no credible reason for this inordinate delay was offered to me.
I have concluded that I am not satisfied that the failure to present the complaints within the normal 6 month time limit for the presentation of complaint was due to reasonable cause and that accordingly there is no justification for any extension of that 6 month period.
Based on the foregoing I find and declare that the Complainant’s employment with the Respondent terminated on 5th May 2015 and the complaints were presented to the WRC on 24th November 2015, which is outside the 6 month time limit laid down in Section 8(2) of the Unfair Dismissals Act 1977 and Section 41(6) of the Workplace Relations Act 2015 for the presentation of complaints.
I further find and declare that I am not satisfied that the failure to present the complaints within that period was due to reasonable cause and accordingly there is no justification for any extension of that time limit period.
The complaints under both the Unfair Dismissals Act 1977 and the Terms of Employment (Information) Act 1994 were presented outside the time limits for the presentation of complaints as laid down in Section 8(2) of the Unfair Dismissals Act 1977 and 41(6) of the Workplace Relations Act 2015 - accordingly and as provided for in that Section I cannot entertain the complaints and I must declare that the complaints are not well founded, they are rejected and are not upheld.
Dated: 15th July 2016