Case Number: ADJ-00010579. Workplace Relations Commission.

• Docket Number: ADJ-00010579
• Hearing Date: 04 July 2018
• Date: 01 August 2018
• Year: 2018
• Court: Workplace Relations Commission
• Parties: A team leader v A network of coffee shops

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, this complaint was assigned to me by the Director General. On July 4th 2018, I conducted a hearing into the complaint and gave the parties an opportunity to be heard by me and to present evidence relevant to the complaint.

The complainant attended the hearing without representation and was accompanied by his partner. The respondent was represented by Ms Sarah Treacy of the Peninsula Group, accompanied by Ms Tanya Howley. For the respondent, the Store Manager where the complainant worked, the Head of Human Resources and a HR Officer also attended and gave evidence.

Background:

The respondent is a network of retail coffee shops and the complainant started work there as a team leader on August 15th 2016. He was dismissed on August 3rd 2017, following a disciplinary investigation arising from a number of occasions of lateness. He was given one week’s notice and he was paid in lieu of notice. He appealed against the decision to dismiss him and an appeal hearing took place on August 16th. He received confirmation on August 21st to the effect that the decision to dismiss him was upheld. The complainant argues that as the outcome of his appeal against his dismissal was issued on August 21st 2017, the termination of his employment is effective from this date. The respondent disputes this and argues that the complainant was dismissed by letter on August 3rd 2017, following a disciplinary meeting on July 31st. A preliminary issue therefore arises in respect of the complainant’s qualifying service under the Unfair Dismissals Act.

Preliminary Issue, Qualifying Service:

Complainant’s Position Arguing that he completed one year of service, the complainant submitted that his service included the time taken for his appeal and his untaken holidays. He referred to the case of UPC Communications Limited (now Virgin Media Ireland Limited) v Employment Appeals Tribunal and Ann Marie Ryan[2017] IEHC 567 as appropriate to his circumstances. UPC applied to the High Court for a review of the decision of the Employment Appeals Tribunal (EAT) in the claim of Ann Marie Ryan (UD 13/2013). I find that the facts of this case are not altogether similar to the complainant’s case. Ms Ryan had more than three years’ service with UPC when she was dismissed for gross misconduct on October 18th 2011. Two days later, her solicitors wrote to the company indicating that she wished to appeal against her dismissal and making a data access request, but the company claimed that it did not receive this letter. The solicitors wrote again in January 2012, but the appeal was not heard until September 6th 2012 and the outcome was communicated to Ms Ryan on September 18th 2012. This is the date relied upon by Ms Ryan in her application to the EAT as the date of her dismissal. If the date of October 18th 2011 was accepted as the date on which Ms Ryan was dismissed, then her complaint to the EAT was out of time, but not so if the date of dismissal was September 18th 2012. Finding that Ms Ryan was entitled to proceed with her claim, the EAT concluded that her appeal should have been dealt with more expeditiously and that the failure to do so “lay at the feet of the respondent.” The chairman also found that Ms Ryan’s statement of the terms of her employment was “silent on the implications and effectiveness of the dismissal once issued and that when an appeal was lodged this did not act as a stay on such dismissal, then in that event, the Tribunal believes this led to lack of clarity and in consequence created ambiguity which resulted in the Claimant believing that her dismissal was stayed pending the outcome of the appeal. The Tribunal support her view.” In the High Court, Mr Justice McDermott also supported this view and UPC’s application was refused. Citing another EAT precedent, the complainant referred to the claim of Eunan Doyle against Conduit Enterprises Limited, UD 1200/2014. Like the previous case, this also turned on the time limit within which Mr Doyle submitted a complaint to the EAT. Mr Doyle also argued that the date of the outcome of the appeal was the effective date of dismissal. The Tribunal agreed with him, as his contract was considered to be ambiguous where it stated that “the outcome of the appeal is the Company’s final decision.” In light of this ambiguity, the Tribunal, by majority decision, decided in favour of the claimant. Returning to the present case, the complainant’s position is that if I find that the date of his dismissal is not extended by the time taken for the respondent to conclude on his appeal, then it should be extended by the number of days of annual leave for which he was paid in lieu, although he did not specify the number of days to be considered. Respondent’s Position It was agreed that the complainant commenced employment on...