Complainant

Respondent

Parties

Sorcha  McDonagh

The Office of the Revenue Commissioners

Representatives

Self-represented

Cathal McGreal BL, instructed by the Revenue Solicitor’s Division

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 8 of the Unfair Dismissals Act, 1977

CA-00070369-001

28/03/2025

The Complainant commenced employment as a clerical officer with the Respondent on the 16th of August 2021.  On the WRC complaint form, the Complainant inserted the date of termination of her employment as the 12th of December 2024.  She identified the ‘unfair dismissal type’ as one of ‘constructive dismissal’.  In response to the question on the WRC complaint form: “On what date did you leave employment?”, the Complainant inserted the date of the 3rd of November 2022.  The Complainant outlined in the narrative to the complaint that her complaint was “complex”; that she believed she was constructively dismissed; and that she was dismissed by the Respondent.  The Respondent submits that the Complainant resigned her employment on the 19th of November 2022 and that her complaint is out of time.  

Oral Testimony of the Complainant (under affirmation)

At the outset of the hearing the Adjudication Officer sought clarity on the date of dismissal.  The Complainant confirmed the date of dismissal as the 12th of December 2024 and that she had been dismissed on that date by the Respondent.  She outlined that she felt she had no option but to “walk out” of the premises in October 2022 due to the conduct of certain persons employed by the Respondent, and due to an injury she alleges she sustained at work as a result.  The Complainant outlined that she had walked out the previous May due to similar inappropriate conduct but had returned after she was asked to reconsider her resignation. 

The Complainant gave evidence in relation to a senior manager and a member of local HR (named in evidence) whom she had contact with thereafter.  On the 30th of November 2022 the Complainant sent a detailed email to this senior manager in which she outlined the treatment she alleges she was subjected to while at work.  She did not receive a response to this email, but she continued to receive her full pay until December 2024 when she was dismissed from her employment.    

In January 2023 the Complainant received automated emails from the National Shared Service Office (“NSSO”) in relation to mobility opportunities.  The Complainant outlined: “so I was under the impression that they were keeping me in employment, that they were keeping a post open for me.  I was moved up the mobility list.  Normally you have to be there for a couple of years before you would be entitled to that.  I was given the choice of nine locations”.  The Complainant opened an email to the hearing which was dated the 19th of January 2023 which she sent to ‘HR Transfers’ within the Revenue Department in which she asked: “I’m unsure where to contact.  I received emails from Mobility, but I’m locked out of the system.  Could you help or give me the email for Mobility?”.  HR Transfers responded on the same date to provide an email for the mobility department within the NSSO.  The Complainant also opened an email from the NSSO dated the 11th of January 2024 which read: “Thank you for contacting HR Services.  I have now confirmed interest on all your mobility applications nothing more is required from you”. 

On the 6th of December 2024 the Complainant contacted the Respondent to query whether she could resume working from home.  On the 24th of December 2024 the Complainant received a letter from the NSSO stating that it had been contacted by the Respondent to advise that the Complainant had resigned from her employment on the 19th of November 2022, and that she had been paid her full salary since this date in error, and that she was now required to reimburse this overpayment in full.  The Complainant outlined that there was never any contact from the Respondent during the two years she was paid and that it was always her who contacted the NSSO or HR Transfers.  She was under the impression that the Respondent had considered her email of the 30th of November 2022 and had decided to keep her position open and that otherwise she would have initiated unfair dismissal proceedings sooner.  The Complainant then applied for illness benefit.  The Complainant outlined that she was unfit for work from October 2022 and continues to be unfit for work and that she had been “pushed into a corner with no option but to leave in 2022, but I was under the impression they were keeping the position open: what would any reasonable person think? I take some responsibility that I should have made more contact [with the Respondent] myself”.  The Complainant confirmed to the Adjudication Officer that she was dismissed on the 12th of December 2024 “because back in October 2022 when I walked out no contact was made with me to tie everything up as would be normal on cessation of employment”.  In response to a question from the Adjudication Officer as to what the Complainant would have expected in this regard, the Complainant responded: “I had accrued annual leave, and I didn’t receive payment for it at that time”.

In cross-examination Mr McGreal put it to the Complainant that her evidence had been that there was no tying up of her employment.  In that regard he directed the Complainant’s attention to her email of the 30th of November 2022 and specifically the title of the email: “[External] Re: Exit Interview – Acknowledgement”.  It was put to the Complainant that she had resigned her employment effective the 19th of November 2022; that she had completed her exit interview; and that her email of the 30th of November 2022 post-dated the effective date of her resignation.  The Complainant was asked why she had omitted this in her direct evidence to the WRC.  The Complainant acknowledged that there had been a zoom call with two people, but then she had received an email from the senior manager to say that someone would be in touch.  The Complainant outlined that the purpose of the zoom call was to tell them why she was leaving. 

Mr McGreal opened an email dated the 21st of October 2022 sent by the Complainant to a member of local HR in which the Complainant wrote: “I have definitely made my mind up and want to move forward with the notice process”.  The Complainant accepted that she was given details of the Employee Assistance Programme; the Dignity at Work Policy; and the Exit Process.  The Complainant agreed that she did not invoke the Dignity at Work or Grievance Policy.  The Complainant accepted that there had been an exit interview on the 4th of November 2022.  The Complainant was asked by Mr McGreal why she did not think of looking for sick pay if she believed she remained in the Respondent’s employment after the exit interview had been completed.  The Complainant responded that she hadn’t even thought of it.  

It was put to the Complainant that there was nothing to suggest that the Complainant remained an employee after the 19th of November 2022 other than she had continued to be paid in error and that she had been retained on the mobility list.  The Complainant responded that there had been plenty of emails sent to her regarding mobility.  The Complainant was asked why she had been cut off from her work email including access to the Respondent’s IT systems and why she was using a private email address if she remained an employee.  The Complainant explained that there was an authenticator process and that was why she could not get into the system.  

The Complainant was asked why she was not certified as unfit for work until December 2024 and why, at no time in the two years since she left her employment, had she sent a medical certificate into the Respondent or asked to be seen by the Chief Medical Officer (CMO).  The Complainant responded that she wasn’t asked by HR to provide medical certificates and had no idea of a CMO as she had not been sick previously.  The Complainant confirmed that the only contact she had with the Respondent between November 2022 and December 2024 was in relation to mobility.    Mr McGreal asked the Complainant did she not think it strange that she was paid in full for two years with no contact between her and the Respondent.  The Complainant responded she was unwell; the Respondent had caused her injury; and she thought they were paying her in full for two years as damage limitation and until the limitation period had expired for the taking of a personal injury case.  The Complainant added: “reading between the lines they were doing damage control.  I thought they were doing the honourable thing and keeping the job open for me”.

Mr McGreal put it to the Complainant that the exit process had been completed and that the Complainant did not withdraw her resignation during that process or in her final email of the 30th of November 2022.  It was put to the Complainant that while she had informed HR Transfers in her email that she was locked out of the system, she did not tell them why she was locked out of the system.  The Complainant responded “no”.  Mr McGreal put it to the Complainant that NSSO could not have known then that she had completed the exit process. The Complainant was asked if she knew that the NSSO was not the same organisation as the Respondent.  The Complainant responded: “well they get their orders from Revenue; how else did they know to email me regarding transfers after November 2022”. 

Mr McGreal opened the WRC Complaint form completed by the Complainant.  He directed the Complainant’s attention to her repeated position that she was constructively dismissed due to conduct which she alleges had occurred prior to October 2022.  The Complainant was asked what her understanding of constructive dismissal was.  The Complainant outlined what she understood the meaning to be.  Mr McGreal put it to the Complainant that dismissal by an employer was the opposite of constructive dismissal.  The Complainant reiterated that she believed she was constructively dismissed and that her case was complex.  The Complainant was directed again to her email of the 30th of November 2022.  It was put to her that she did not retract her resignation in that email and that at the end of the email she asked about payment for her holidays, and that it was clear that the Complainant had resigned, and that the ongoing payment of salary thereafter was owing to an administrative error.  It was put to the Complainant that the narrative of her complaint within the WRC complaint form did not focus at all on the dismissal alleged to have taken place in 2024 but rather the Complainant’s view that she had no option but to leave in 2022 having been constructively dismissed.

Mr McGreal suggested to the Complainant that the only reason she was pursuing a case before the WRC now was because the NSSO was pursuing her for the overpayment from November 2022 until November 2024.  The Complainant denied this was the case and reiterated her position that she thought the job was being kept open for her.

In response to questions from the Adjudication Officer, the Complainant clarified that she had received no contact from the Respondent between the 19th November 2022 and the 30th November 2022; no response to her email of the 30th of November 2022 or anytime thereafter; and that any contact received by her was either automated emails from the NSSO or emails from HR Transfers; and that contact from HR Transfers was in response to her having contacted HR Transfers to obtain details in relation to NSSO Mobility.  

In closing the Complainant stated she remained an employee after the 19th of November 2022; that she was under the impression that after she sent her email of the 30th of November 2022 that the Respondent was keeping her job open.  The Complainant submitted she was left with no alternative but to leave and that she was constructively dismissed.

Oral Testimony of Ms Sweeney (under affirmation)

Ms Sweeney outlined her role as Personnel Officer and explained to the hearing the division of duties between local HR; HR Transfers and the NSSO and that they were all separate units.  She explained that the Complainant’s resignation was handled by local HR and the exit process was conducted within that unit.  The Complainant was removed from internal IT systems when she resigned.  It was the responsibility of local HR to inform the NSSO of the Complainant’s resignation so that she would be removed from payroll.  The NSSO manage payroll for all departments.  A case number should have been raised.  This did not happen and for that reason the Complainant continued to be paid in error.  The NSSO would not know that the Complainant had resigned without that instruction coming from local HR and accordingly the Complainant continued to receive her pay and to receive automated emails from the NSSO in relation to mobility opportunities. 

Ms Sweeney outlined that in the event of a resignation where an employee raises concerns, it is standard practice to provide them with a copy of the Dignity at Work Policy.  The Complainant was accordingly provided with this policy, but she did not invoke the policy at any time.  An exit interview was completed with the Complainant on the 4th of November 2022.   HR Transfers did not know the Complainant had resigned because she was still showing on payroll.  The NSSO deal with external (outside of the Revenue department) transfers only.  The automated emails do not confirm employment status.  It was a revenue systematic review of all staff on payroll that led to the detection of the error with regards to the Complainant being retained on payroll.

The Complainant asked Ms Sweeney who prompted the NSSO to consider her for mobility.  Ms Sweeney responded that the Complainant must have done so herself.  The Complainant asked Ms Sweeney why she was not paid for outstanding annual leave if her resignation had been accepted in 2022.  Ms Sweeney explained that the NSSO handle the termination process with respect to pay and payment for outstanding annual leave. and that because the case number had not been raised by local HR, payment for the Complainant’s outstanding annual leave had not been processed.  The Complainant asked why she was sent more transfer options that she had elected.  Ms Sweeney responded that this is because as a division expands within Departments more mobility options arise and staff on a mobility list are automatically included in the extended list of options.

In response to a question from the Adjudication Officer on the frequency of automated emails, Ms Sweeney confirmed that emails regarding mobility automatically issue from the NSSO on an annual basis to employees who have put their name on the mobility list.

Mr McGreal in closing submitted that time and again in the complaint form and during the hearing the Complainant outlined that she believed she was constructively dismissed in November 2022, and that the time limit for the purposes of the referral of the complaint to the WRC began running in November 2022.  Therefore, the complaint is out of time.  The WRC must determine what the Complainant’s employment status was after the 19th of November 2022.  It is the Respondent’s case that the Complainant was not engaged under a contract of employment after the 19th of November 2022 as the Complainant’s resignation took effect on the 19th of November 2022.  If the WRC concludes that she was indeed an employee in December 2024, then it must examine who dismissed the Complainant in December 2024.  Mr McGreal, relying on paragraph 10.42 of McDermott & McDermott, Contract Law, (2nd ed., Bloomsbury Professional, 2017) regarding the construction of contractual terms (and to the case referred to therein, namely The Law Society v. The Motor Insurers’ Bureau of Ireland [2017] IESC 31), argued that there was no contract formed after the 30th of November 2022 solely based on automated NSSO emails and because the Complainant continued to receive salary in error.  The Complainant made no contact with the Respondent during the period she continued to be paid.  She never asked about sick pay and saw no reason to; she had no access to Revenue IT systems or her email and never questioned why; and she had a good relationship by her own admission with HR yet never contacted them in relation to her employment in that two-year period.  No reasonable person could say that there was a contract of employment after the 19th of November 2022.

Relevant Law:

Section 8(2) of the Unfair Dismissals Acts, 1977 - 2015 (“the Acts”) provides:

“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.”

Findings:

The Complainant’s evidence was that she had no option but to leave her place of work in May 2022 due to alleged inappropriate behaviour.  She was asked to reconsider her resignation.  After thinking about it overnight, the Complainant decided to return to work.  Again, in October 2022, the Complainant left her place of work and did not return.  I am satisfied that this time it was the intention of the Complainant to resign and that she followed through on that intention.  I find, for the reasons set out below, that the Complainant resigned her employment effective from the 19th of November 2022.  Therefore, the Complainant’s claim of unfair dismissal is out of time. 

On the 21st of October 2022 the Complainant emailed local HR (email opened to the hearing by Mr McGreal) asking: “[c]an you advise me on the process to give notice”?  She was asked by local HR to speak with her manager and explain why she wanted to leave.  The Complainant responded that she did not want to speak with one of the managers (for reasons outlined in her email) and thanked HR and other managers for their assistance in the past.  She added: “I have definitely made my mind up and want to move forward with the notice process”. 

On foot of this email, local HR advised the Complainant of the Dignity at Work Process and the exit process.  It was common case that the Complainant did not invoke the Dignity at Work Policy.  Instead, she engaged in the exit process, and on the 4th of November 2022 the Complainant participated in a remote exit interview.  The record of that exit interview, opened to the hearing by Mr McGreal, recorded the exit type as ‘resignation’.  No evidence was proffered by the Complainant that she changed her mind during the exit interview or at any time after the exit interview was conducted; or that she rescinded her notice during the notice period; or that the Respondent, with her agreement or otherwise, placed her resignation on hold.  The Complainant was unable to provide the hearing with a copy of the email she referred to in her direct evidence (i.e., an email from the senior manager allegedly saying: “someone would be in touch”), and she confirmed to the hearing that there was no contact between her and the Respondent between 19th November 2022 and 30th November 2022.  I am satisfied that following the expiry of her notice period, the Complainant’s resignation took effect on the 19th of November 2022.  I accept the Respondent’s submission that the Complainant’s access to the Respondent’s IT system was discontinued from this date and that her resignation was recorded on the HR system from this date. 

It was common case that the Complainant then emailed the senior manager on the 30th of November 2022.  The Complainant gave no evidence as to what prompted her to compose an email to the senior manager on this date.  In this detailed email the Complainant outlined the alleged inappropriate behaviour that she had been subjected to.  The Complainant concluded her email by saying: “I could go on typing, but I’ll leave it at that.  I think I have given a general idea of why I was left with no option but to give my resignation . . . Just one question to ask, should I assume I’m not getting paid my holiday pay?”  I accept the submission of the Respondent, that nowhere in that email did the Complainant seek to retract her resignation (though I note the notice period had expired at this stage).  I also note that the Complainant did not request re-employment in that email, and I am satisfied that she knew the employment relationship had ended given her question regarding holiday pay on cesser of employment.

I accept the Respondent’s submission that for the Complainant to have been dismissed by the Respondent on the 12th of December 2024 as she claims, and accordingly for her complaint of unfair dismissal before the WRC to be in time, the Complainant must have been in the Respondent’s employment on that date.  I am satisfied, for the following reasons, that the Complainant was not an employee of the Respondent on the 12th of December 2024 (or indeed any time after the 19th of November 2022). 

It was common case the Complainant received no response to her email of 30th November 2022.  It was also common case that she continued to be paid after the 19th of November 2022; that she did not receive holiday pay on cesser of employment; and that she received automated emails in relation to mobility opportunities for two years after her resignation.  I accept the submission of the Respondent that the latter were errors which arose due to a case number not being raised by local HR and therefore the NSSO had no instruction to cease pay; process cesser holiday pay; and remove the Complainant from the mobility list.  I am satisfied that no instruction was given by the Respondent to the NSSO after the Complainant tendered her resignation, or anytime thereafter, to add the Complainant to the mobility list.  I do not find that the Respondent’s errors (in relation to pay, cesser holiday pay and retaining the Complainant on the mobility list) gave effect to a continuation or renewal of the previous contract of employment or to a new contract of employment.  While I acknowledge the Complainant formed an erroneous impression that her employment had not ended due to errors on the Respondent’s part, it is regrettable that she did not make any effort to contact the Respondent to seek clarification on the matter.

In conclusion, I find the Complainant resigned her employment effective the 19th of November 2022.  Section 8(2) of the Acts provide that a claim for redress under the Acts must be initiated by giving a notice in writing within the period of 6 months beginning on the date of the relevant dismissal, or within such period not exceeding 12 months where there is reasonable cause.  Accordingly, I find the Complainant’s claim for redress under the Acts is out of time.

I decide this claim under the Unfair Dismissal Acts, 1977 - 2015 is out of time and I do not have jurisdiction to decide the complaint and award redress under the Act.

Unfair dismissal. Constructive dismissal. Complaint out of time.