Complainant

Respondent

Parties

Bernard  Carroll

Freightspeed

Representatives

Michael Kinsley B.L., instructed by    Brannigan and Matthews

John Keenan JRK Business Support & Employee Advocacy Services

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-00066688-001

14/10/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and two witnesses for the respondent gave evidence under affirmation.  Cross examination was facilitated.

At the completion of the hearing, I took the time to review all the oral evidence together with the written submissions made by the parties. The respective positions of the parties are noted, and a broad outline of the evidence and cross examination is provided.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

The cognisant period for these complaints runs from 15 April 2024 to 14 October 2024.

This complaint is associated with ADJ 00044960

In April 2022, the complainant agreed with the respondent that he would take carer’s leave for a period of up to 2 years, with an express agreement that his return to work would occur, at the latest, in April 2024. The relevant form signed by the Respondent is enclosed with this submission.

While on his carer’s leave, the complainant corresponded with the respondent in August 2022 and sought to be facilitated with part-time hours during his period of carer’s leave. This request was refused, however at no stage was it suggested to the complainant that his agreement with the respondent to permit him to take the relevant leave was being altered or that his employment was being terminated.

At various stages during the hearing of the associated complaints, the respondent submitted that the complainant was still an employee prior to 2024.  However, the respondent also put forward the suggestion that the complainant abandoned his employment when he took up a position with another employer during the period of Carers Leave.

In April 2022, the complainant agreed with the respondent that he would take carer’s leave for a period of up to 2 years, with an express agreement that his return to work would occur, at the latest, in April 2024.

While on his carer’s leave, the complainant corresponded with the respondent in August 2022 and sought to be facilitated with part-time hours during his period of carer’s leave. This request was refused, however at no stage was it suggested to the complainant that his agreement with the respondent to permit him to take the relevant leave was being altered or that his employment was being terminated.

The respondent for its part suggested both that the complainant was still an employee that the complainant effectively abandoned his employment when he took up employment with another company.

The facts of this case are quite convoluted in there the date for dismissal was given both as occurring in April 2022 and as occurring in April or May of 2024. The facts of this case are the complainant took carers leave in April 2022 but was unable to qualify for the Department of Social welfare scheme. He sought to return on a part-time basis, but the respondent confirmed that there were no part-time positions available. He took up employment with another employer during the career break.  However, he took a complaint to the WRC in February 2023 regarding employment matters.  These are dealt with in ADJ 49960.

During those proceedings (which were merged with the current case) , it emerged that the Revenue Commissioners were notified in August 2022 that the complainant had ceased to be an employee in April 2022.   The respondent put forward various positions including that the complainant remained an employee and also that by taking up employment with another company, the complainant had effectively abandoned his employment and was no longer its employee.

One fact that was established during the various hearings and was not challenged was that the Revenue Commissioners were informed in August 2022 that the complainant was no longer an employee with effect from April 2022. How and when that was communicated to the complainant is uncertain, but the complainant departed his employment with the respondent in April 2022 for a two-year period. On the basis of the foregoing, it appears that the employment relationship terminated in 2022 when the employee was removed from the payroll, as notified to the Revenue Commissioners.

I note however that certain matters proceeded between the complainant and the respondent which are dealt with in another decision (ADJ 44960) and this gave rise to a certain amount of communication between the parties. The externally verifiable fact remains that the employment relationship terminated in April 2022 in accordance with the Revenue Commissioners documentation.

Section 8(2) of the Unfair Dismissals Act states 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.

The complaint of unfair dismissal was lodged with the WRC on 14 October 2024.  The timeframe for lodgement of a complaint is restricted to a six-month period but this may be extended to a maximum period of twelve months following the dismissal if a complainant was prevented from doing so due to reasonable cause.  The maximum timeframe allowed is twelve months following the date of dismissal.

Having regard to the foregoing I find, therefore, that this complaint has been taken outside of the time frame considered by the legislation, i.e. 6 months extendable in certain circumstances to 12 months.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was lodged outside of the timeframe permitted by the legislation.

Unfair Dismissal – claim lodged outside timeframe