Complainant

Respondent

Parties

Glenn  Kearney

Canavan and Byrne, Management & Training Solutions Limited

Complainant

Respondent

Anonymised Parties

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Representatives

 Ceile Varley B.L instructed by Gibson and Associates LLP

Ciaran Doherty B.L. instructed by  Williams Solicitors LLP

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-00059081-001

28/09/2023

The Complainant is seeking adjudication by the Workplace Relations Commission under section 8 of the Unfair Dismissals Act 1977 (as amended) and has submitted that he was constructively dismissed from his employment with the Respondent. The Respondent denied the Complainant’s complaint.

The Complainant had full representation at the hearing. The Complainant provided me with a written submission dated the 16th January 2024 together with a book of documentation. No objection was raised in relation to any of the documentary evidence relied upon by the Complainant in the course of making his case. I have additionally heard from Complainant. The Complainant was cross-examined by the Respondent.  

The Respondent had full legal representation at the hearing.  The Respondent provided me with a written submission dated the 1st January 2024 together with a book of documentation. No objection was raised in relation to any of the documentary evidence relied upon by the Respondent in the course of making its case. I have additionally heard from the Managing Director. The Respondent’s witness was cross-examined by the Complainant.

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

Having considered the documentation furnished to the WRC by the parties and the oral evidence of the Complainant and the Respondent’s Managing Director I am of the view that before proceeding to consider the substantive issue I must consider whether the Complainant referred the constructive dismissal complaint to the WRC before the date of the actual dismissal and whether the Complainant is covered by the provisions of the Unfair Dismissals Act 1977 (as amended) (hereinafter referred to as “the 1977 Act”).

In a constructive dismissal case the date of dismissal is the date the employee’s employment is effectively terminated. I must therefore first determine when the Complainant terminated his employment with the Respondent as the Complainant did not furnish a letter of resignation to the Respondent.

The Complainant referred his complaint to the WRC on the 28th September 2023 at 20:45:19. On the WRC Complaint Form he stated that he left his employment on the 1st September 2022 however he left the date the employment ended blank. By letter dated the 6th October 2023 the WRC acknowledged receipt of the incomplete complaint form stating:

The complaint application has undergone validation checks and the following issues have arisen.  The complaint cannot be further processed until these issues have been addressed/ clarified in writing. Your original complaint and any associated documentation are attached.

·        Please state employment Commencement / End date(s)

The Complainant responded on the 10th October 2023 stating that the date the employment ended was the 20th September 2023.

In his written submissions he stated that he resigned by way of email on the 20th September 2023 indicating that he would not return to work after his parent’s leave terminated on the 6th October 2023.

At the commencement of the hearing the Complainant’s representative stated that the Complainant resigned from his employment on the 20th September 2023 and that was the date his employment ended. In the course of copious evidence however it emerged that the Complainant still engaged with the Respondent as an employee subsequent to that date and that the Complainant’s employment relationship with the Respondent continued in existence beyond the 20th September 2023.

It was common case that the Complainant was on parent’s leave in September 2023 and that prior to commencing and during his parent’s leave he was seeking alternative employment and that the Managing Director was assisting in with the preparation of his CV and for interviews.

It was submitted by the Complainant that prior to taking parent’s leave in September 2023 he understood that disciplinary action would be taken against him if he did not find alternative employment and that he felt pressured and under duress to resign and find employment elsewhere. This was vehemently denied by the Respondent.

On the 17th September 2023 the Managing Director emailed the Complainant in relation to the arrangements for his return to work after his parent’s leave as she was due to be away the week he returned. In the email she stated “I know you are looking for alternative employment but if you haven’t secured anything by then, I will expect you back and I will email you on your first day with an update and the assignment of tasks. I can then meet you in person the following week.”

On the 20th September 2023 the Complainant made contact with the Respondent by email wherein he stated: “I still have some interviews planned and I’ve received calls about more potential interviews, so I haven’t finalised anything yet. But in any case, I already have a job offer, so there will be no need to plan anything with regards to returning to work.”

While I note the email does state that the Respondent need not make arrangements for his return to work following parent’s leave the email was ambiguous as to whether the Complainant was terminating the employment relationship on the 20th September 2023 or on some unspecified date in the future or at all.

The Managing Director replied on the 20th September 2023 and sent a further email on the 21st September 2023 asking the Complainant to formally confirm his resignation in writing as she was aware that he was doing interviews and she wanted clarity that he had resigned from his position. She advised the Complainant that if he changed his mind and decided to return to work after parent’s leave that was OK and that she would make arrangements for his return to work. Whilst the Complainant advised the Managing Director that he would send a letter of resignation no letter of resignation was ever furnished by the Complainant to the Respondent.

On the 26th September 2023 the Managing Director sent at Whatsapp message to the Complainant stating “[y]ou are still employed here and my expectation is a return to work next week as you haven’t resigned… The team are expecting you back from parent’s leave”

Unbeknownst to the Respondent, at 20:45:19 on the 28th September 2023, the Complainant referred the within complaint to the WRC claiming constructive dismissal.

At 9:25pm on the 28th September 2023 the Complainant made contact with the Managing Director setting at a list of grievances in an email entitled “Employment situation” wherein he indicated that he would not be handing in his notice. In its written submissions the Respondent stated that following receipt of the email of the 28th September 2023 it understood that the Complainant was not resigning and would return to work at the end of his leave.

Between the 29th September 2023 and the 6th October 2023 the Complainant continued to engage with Respondent about his return to work from parent’s leave.

On the 29th September 2023 the Respondent emailed the Complainant stating “as normal procedures I am contacting you to confirm your return to work on Monday 2nd October … if you can confirm your return on Monday 2nd  of October…” . The Complainant replied on the same date stating that the agreement had been that he would take 5 weeks parent’s leave and that he had sent an email to the Managing Director on the 20th September “mentioning my parents leave ends on the 5th and since it was not questioned, I naturally assumed there was no confusion on these dates.”

In or around the 2nd October 2023 correspondence passed between the Complainant and the Managing Director wherein redundancy was discussed however a redundancy situation could have only arisen if the Complainant was still employed by the Respondent.

Still of the belief that the Complainant was returning to work after his parent’s leave the Respondent emailed the Complainant on the 5th October 2023 stating:

Hi Glenn

Hope all is well with you and the family.

Further to my email earlier in the week I am confirming the details of the office space for Friday. When you arrive and get settled at a desk give me a call and I will arrange your laptop to be delivered asap. I know Angela chose this location as it is convenient to your home. You can give me feedback on Friday, and it will be booked for a monthly blocks. If it is not suitable, we can look at alternative. As you are in a shared space it would be best to use headphones. If you don't have any, I can arrange these for you”

Attached to the email was the booking form for a hot desk commencing on Friday the 6th October 2023.

The Complainant did not reply to the email of the 5th October 2023 and he did not return to work the following day on the 6th October 2023. According to the Respondent, when contacted by the Respondent the Complainant stated that the email of the 27th June 2023 should have been taken as the reason for his resignation.

Whilst the Complainant stated in evidence that it was “clear in my head that I had resigned” and that “sending a letter of resignation didn’t’ sit well” with him, this was never communicated to the Respondent despite the Respondent requesting the Complainant to do so on a number of occasions.

I have considered whether the Complainant’s employment ended on the 20th September 2023 when he emailed the Respondent or whether it ended on the 6th October 2023 when the Complainant was due to return to work following parents leave and failed to do so or on some other date between the 20th September and the 6th October 2023. While I have attached some weight to the communication of the 20th September 2023 I am not satisfied, taking into consideration its contents and the communication between the Complainant and the Respondent from 20th September 2023 onwards that the Complainant resigned from his employment on that date or at any time before the within complaint was referred to the WRC on the 28th September 2023 at 20:45:19. In the circumstances I therefore find that the Complainant referred his complaint to the WRC before the date of dismissal.

I must next consider whether the unfair dismissal claim was validly referred to the WRC so as to confer jurisdiction on me to hear and determine the complaint of constructive dismissal. In this regard section 8(2) of the 1977 Act provides 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 to 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 employer concerned as soon as may be after the receipt of the notice by the Director General.”

In Caragh Neeson v. John O’Rourke & Sean O’Rourke Chartered Accountants UD2049/11 the EAT noted that section 8(2) of the 1977 Act amended the previous wording of that section which required that a claim be lodged “within 6 months of the date of the relevant dismissal”. The EAT stated that it was “… of the opinion that this amendment demonstrates a manifest intention by the legislature to preclude claims being lodged before the dismissal date.” Having considered the provisions of section 8(2) of the 1977 Act and the High Court decision in Brady v. Employment Appeals Tribunal [2015] 26 E.L.R. 1 the EAT found that in circumstances where the claim was not lodged with the EAT in accordance with section 8(2) of the 1977 Act the Tribunal could not accept jurisdiction to determine the substantive case.

Taking into consideration the foregoing and in particular the findings of the EAT and the Superior Courts I find that the complaint was not referred to the WRC in accordance with Section 8(2) of the 1977 Act and accordingly I do not have jurisdiction to determine the substantive case of constructive dismissal.

As the complaint was not referred in accordance with section 8(2) of the 1977 Act I do not have jurisdiction to determine the substantive case of constructive dismissal.