Case Number: ADJ-00000882. Workplace Relations Commission

• Docket Number: ADJ-00000882
• Date: 15 July 2016
• Court: Workplace Relations Commission
• Parties: An Employee v An Employer

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

Date of Adjudication Hearing: 8^th March 2016 and 6^th 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 The complaint under Section 39 of the Redundancy Payments Act 1967 was withdrawn at the Hearing (CA-00001053-003 refers).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 14^th 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 26^th February 2015, which they said meant that any complaint would have to have been presented to the WRC on or before 25^th August 2015, but it was not presented until 24^th November 2015. The Respondent said that even if the date of the resignation was considered to be 12^th 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 26^th February 2015, 5^th May 2015 and 12^th May 2015. The Respondent said that the second of these letters, the one of 5^th 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 12^th 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 26^th 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 3^rd 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 3^rd 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 26^th February 2015, 5^th May 2015 or at the very latest 12^th 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 27^th May 2015. The Complainant referred to a letter from the Respondent of 28^th 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 14^th 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 26^th February 2015, the Complainant’s Solicitor states that the Respondent’s actions “amounts to the constructive dismissal of our client”. I note that this...