Complainant

Respondent

Parties

Manish Doollee

 HZH Catering Ltd

Representatives

Self-represented

Peninsula Business Services Ireland

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-00071820-001

23/05/2025

On 23 May 2025, the claimant referred to the Workplace Relations Commission a claim for constructive dismissal.

At a hearing on 11 June 2026, it was submitted on behalf of the respondent that the Commission did not have jurisdiction to hear the claim as there had been no dismissal at the time the claim was referred to the Commission.  The complainant gave evidence in relation to the termination of his employment with the respondent.

I reserved my position on the preliminary issue.  Neither party availed of an opportunity to comment on two decisions provided after the hearing in relation to the preliminary issue. 

The complainant commenced employment with the respondent on 2 November 2023 as an assistant manager.  Shortly thereafter, the complainant took up the role of general manager. 

In or around May 2025, a new general manager was assigned to the restaurant, and the complainant was told he could be the assistant manager on less pay or alternatively that he could find another job.  The respondent prepared a new contract for the complainant, but the complainant did not agree with the terms and asked for it to be destroyed.   The complainant submitted a copy of this contract dated 23 May 2025, which he had marked as void on 21 May 2025.

The claim of constructive dismissal, referred to the WRC on 23 May 2025, included the statement that the complainant had not yet left his job, described the environment as ‘very stressful’, and that the complainant did not know how to proceed next.

The complainant’s evidence was that the respondent issued him with a termination letter on 24 May 2025 and that his last day in employment with the respondent was 30 May 2025.  The complainant advised that he filed the claim with the WRC because he could see what was coming and wanted to find out what he should do.

The complainant commenced alternative employment on 3 July 2025 on a slightly higher wage than what he had earned in the respondent’s employment.  The complainant remained in that alternative employment at the time of the June 2026 hearing. 

The respondent asserted that the WRC did not have jurisdiction to hear the claim under the Unfair Dismissals Act 1977, as amended, as there had been no dismissal at the date of referral of the claim to the WRC.

It is common case that the respondent terminated the complainant’s employment after the date the complainant referred the claim to the WRC.

The preliminary issue concerns the relevant statutory timeframe for referral of an unfair dismissal claim to the WRC and whether the claim is validly before the WRC.

The complainant referred a claim for redress under the Unfair Dismissals Act 1977, as amended, (the “1977 Act”) to the WRC on 23 May 2025.  

The Law

Section 8(2) of the 1977 Act 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,

…”

The ‘date of dismissal’ and ‘dismissal’ in relation to an employee are defined in section 1 of the 1977 Act as follows:-

“…

‘date of dismissal’ means—

(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973,

(c) where a contract of employment for a fixed term expires without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited, but was, at the time of its making, incapable of precise ascertainment), there is a cesser of the purpose, the date of the expiry or cesser;

‘dismissal’, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

…”

In relation to dismissal, it was common case that the complainant did not terminate his employment with the respondent and that the respondent terminated the complainant’s employment by way of its letter of termination dated 24 May 2025.  Based on the foregoing, the date of dismissal in accordance with section 1 of the 1977 Act is 1 June 2025.

Regarding the referral of the within claim on 23 May 2025 and whether jurisdiction is conferred, I have considered the decision of the High Court Brady v Employment Appeals Tribunal & Bohemian Football Club [2014] IEHC 302 and the determination of the Employment Appeals Tribunal in Neeson v John O’Rourke & Sean O’Rourke Chartered Accountants (UD2029/2011).  

In the Brady case, the employee was advised on 16 December 2011 that his employment was terminated with immediate effect by reason of redundancy.  The employee lodged a claim of unfair dismissal under the 1977 Act on 23 December 2011 citing the date of dismissal as 16 December 2011.  The Employment Appeals Tribunal found that it did not have jurisdiction to hear the claim as, taking account of a 2-week redundancy notice period, the employee had filed the claim before the date of dismissal.  The Tribunal’s decision was quashed by the High Court, and I note the following at paragraph 8 of the Court’s judgment in relation to section 8(2) of the 1977 Act and the Tribunal’s decision to decline jurisdiction:-

“A number of issues come into play at this point.  The first is that prescribed time periods are typically intended to thwart the tardy, not punish the prompt.  The second is the longstanding principle of equity, good since at least the time of Smith v Clay (1761) 3 Bro CC 639n, that “Equity aids the vigilant, not the indolent”.  The third is the practical issue of whether a person, here the Employment Appeals Tribunal, can be said not to have received notice within a prescribed period, if it had notice immediately prior to, at the commencement of, and throughout, the six-month period, that Mr Brady should be denied the opportunity to bring his claim because the Tribunal through no fault of Mr Brady, may also have had notice of the claim immediately prior to the six-month period.”

At paragraph 9 of its judgment, the Court acknowledges that “there will be some boundary in time and some circumstances in which an ostensibly premature notice will be found in fact to have been premature and thus not duly lodged within the appropriate time period for the purposes of s.8(2).”

The within claim differs materially from the circumstances in Brady in the following respects.  At the time of referral of the claim to the WRC, the complainant had not been given notice of termination of his employment and the complainant remained in employment.  The complainant’s evidence was that he referred the claim to the WRC because he could see what was coming and was looking for advice as to what to do.  The claim referred was one of constructive dismissal, notwithstanding the complainant had not terminated his contract of employment with the respondent at the time of the claim referral.  After the claim referral, the respondent terminated the complainant’s contract of employment.  It was at the hearing on 11 June 2026 that the WRC was notified of the respondent’s termination of the contract, which constituted the dismissal within the meaning of section 1 of the 1977 Act, on 1 June 2025.  It follows that the WRC did not receive notice of the relevant dismissal prior to, at the commencement of and throughout the prescribed period.

I find that the claim falls within the circumstances acknowledged by the High Court at paragraph 9 of its judgment, namely that the complainant was premature in giving notice of a claim for redress under the 1977 Act.

Furthermore, I concur with the Tribunal’s reasoning in Neeson for an interpretation of section 8(2) of the 1977 Act as meaning that a claim must be lodged after the dismissal, specifically having regard to the 1993 amendment to section 8(2) which inserted the words “beginning on”, giving those words their natural and ordinary meaning, and the implications for the adjudication system of a lenient approach.

I therefore find that the within claim was not lodged in accordance with section 8(2) of the 1977 Act, having been lodged prior to the date of the relevant dismissal.  It follows that I do not have jurisdiction in relation to the claim.

In the circumstances, my decision is to dismiss the claim in accordance with section 8 of the 1977 Act.  

For the reasons set out above, my decision is to dismiss the claim in accordance with section 8 of the Unfair Dismissals Act 1977, as amended.

Constructive dismissal – Dismissal - Date of referral of claim – Premature claim - Jurisdiction