UPC Communications Ireland Ltd v Employment Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 05 October 2017
• Neutral Citation: [2017] IEHC 567
• Docket Number: [2015 No. 158 J.R.]
• Court: High Court
• Date: 05 October 2017

[2017] IEHC 567

THE HIGH COURT

JUDICIAL REVIEW

McDermott J.

[2015 No. 158 J.R.]

BETWEEN

UPC COMMUNICATIONS IRELAND LIMITED (NOW VIRGIN MEDIA IRELAND LIMITED)

APPLICANT

AND

EMPLOYMENT APPEALS TRIBUNAL

RESPONDENT

AND

ANN MARIE RYAN

NOTICE PARTY

Employment – S. 7 of the Unfair Dismissals (Amendment) Act 1993 – Serious misconduct – Period of limitation – Date of dismissal.

Facts: The applicant sought a declaration to the effect that the respondent had erred in law in holding that it had jurisdiction to hear and determine an unfair dismissal claim initiated by the notice party. The applicant also sought an order of certiorari for quashing the respondent's determination. The applicant argued that the respondent had conducted an oral hearing and refused to admit evidence presented by the applicant. The applicant submitted that the notice party had filed the said claim outside the period of 12 months, and thus, the respondent had no jurisdiction to entertain that claim.

Mr. Justice McDermott dismissed the applicant's application. The Court held that the respondent had made the decision after fully considering all the facts and circumstances of the case. The Court observed that the applicant was given opportunity to adduce evidence, which he did not avail. The Court noted that the time period for serving the notice to file the claim began to run from the date on which the notice party was notified about the decision. The Court held that the notice party had filed the claim within the statutory prescribed time period.

JUDGMENT of Mr. Justice McDermott delivered on the 5th day of October, 2017

1 The applicant, UPC Communications Limited (UPC) seeks a declaration that the respondent erred in law in holding that it had jurisdiction to hear and determine an unfair dismissal claim by the notice party, Ann Marie Ryan, because it was instituted outside the time limit prescribed by the Unfair Dismissals Acts 1977 to 2007. The applicant also seeks an order of certiorari quashing the respondent's determination dated 18th February, 2015, that it had jurisdiction to hear and determine the said claim notwithstanding the fact that it was not initiated until 7th January, 2013, in excess of twelve months following the date of dismissal being 18th October, 2011.

2 In the alternative, an order is sought quashing the determination on the grounds that the Tribunal purported to reach conclusions of fact without hearing any testimony and having refused to hear evidence despite being requested to do so by the applicant. A further order was sought restraining the respondent from continuing to hear the Notice Party's claim.

Background

3 The applicant employed the notice party from 27th February, 2008 until her dismissal by letter dated 18th October, 2011, on grounds of serious misconduct following an investigation. The letter of dismissal stated that the conduct complained of justified summary termination with effect from that date, but that the applicant would pay the notice party one month's salary in lieu of notice.

4 By letter dated 20th October, 2011, the solicitors for the notice party wrote to the applicant stating their intention to appeal the dismissal decision and requesting information pursuant to the Data Protection Act. However, it is claimed that this letter was never received by the applicant. The applicant alleges that no communication took place between Ms. Ryan, her solicitors and the applicant until 23rd January, 2012. In the meantime, the sum due in respect of the one month's salary and a P45 was sent to Ms. Ryan under cover of a letter dated 14th November, 2011.

5 On 23rd January, 2012, the notice party's solicitor wrote to the applicant again requesting information stating that if it were not furnished within seven days it would refer the matter to the Data Protection Commissioner. A date for the intended appeal against the dismissal decision was also requested.

6 The facts concerning the non-receipt of the letter of 20th October, 2011, were never addressed, it was claimed, because of the Tribunal's alleged failure to hear oral evidence on the matter. It is denied by Ms. Ryan that the Tribunal was ever requested by the applicant to hear oral evidence.

7 An internal appeal hearing took place on 6th September, 2012, and the decision to dismiss Ms. Ryan was upheld. This was confirmed to her in a letter dated 12th September.

8 The applicant maintains that at no time did it ever represent to the notice party or her solicitors that the decision to dismiss her would not take effect pending the internal appeal, nor did the notice party contend that the dismissal was ineffective until the claim was initiated under the Unfair Dismissal Acts, in a Workplace Relations Complaint Form on or about 7th January, 2013, in which a dismissal date of 18th September, 2012, was relied upon.

9 At the time Ms. Ryan submitted her claim to the Employment Appeals Tribunal (hereinafter EAT) on 7th January, 2013 it was clear that the claim had been initiated outside the mandatory six month period prescribed by s.8(2) of the Unfair Dismissals Act 1977 (as amended), and the maximum period of twelve months if the date of dismissal is taken to be 18th October, 2011 but not if the date of dismissal was taken to be 18th September 2012. The period of twelve months would only apply upon proof of exceptional circumstances that would have prevented Ms. Ryan from taking her claim within six months, pursuant to s.8(2)(b) of the Act. In any event, the Notice Party did not seek to rely upon the twelve month period but on the submission that the claim was made within six months of notification of the internal appeal decision.

10 The matter came before the respondent sitting in Limerick on 24th September, 2014. The applicant raised a preliminary issue by way of written submission challenging the respondent's jurisdiction to entertain the claim in advance of the hearing date. These submissions were furnished to the Tribunal Members in the course of oral submissions on the day of the hearing. Ms. Ryan's legal representatives made oral submissions but were requested then to provide written legal submissions.

11 These were furnished to the applicant on 6th November, 2014. The applicant then wrote to the respondent on 21st November, expressing the view that its position had been clearly set out in its written and oral submissions and that the notice party's submissions were inaccurate and irrelevant. It did not request that the respondent relist the matter to hear oral testimony.

12 The respondent issued its determination on the preliminary matter on 10th February, 2015. It held that the dismissal did not take effect until the appeal process had concluded and that the claim was initiated within the six-month time limit.

13 The applicant was granted leave to apply for judicial review (Noonan J.) on 23rd March, 2015.

Determination of the Employment Appeals Tribunal on the Preliminary Issue

14 At the Tribunal hearing UPC relied upon the fact that Form T1A which indicated that the notice party's claim for unfair dismissal had been received on 7th January, 2013. This was outside the period of twelve months from the date of the termination of the claimant's employment, the 18th October 2011. It was therefore claimed that the EAT had no jurisdiction to receive or determine the notice party's claim.

15 The notice party claimed that the internal appeal acted as a stay on dismissal. It was submitted on her behalf that s.1 of the Unfair Dismissals Act 1977, defines dismissal and that it was within the respondent's jurisdiction to determine the relevant date of dismissal in any particular case in accordance with the statute.

16 In its determination of 10th February, 2015, the Tribunal held that under the Unfair Dismissals Acts 1977 – 2007, the Notice Party/claimant was entitled to proceed with her claim. It ruled that the applicant should have dealt with the initial hearing of the appeal expeditiously, that the delay was largely the applicant's fault and contrary to the claimant's entitlement to natural, speedy and effective justice. It also found that the terms of employment led to a lack of clarity on the implications and effectiveness of the initial dismissal. The Tribunal accepted the claimant's submission that her dismissal was stayed pending the outcome of the internal appeal. The Tribunal also held that the claimant had lodged her appeal with the EAT within time and directed that the case proceed on the substantive issues. It ruled as follows:

'Having carefully considered this issue and the submissions made, the Tribunal finds that under the Unfair Dismissal Acts 1977 to 2007, that the Claimant is entitled to proceed with her claim and is not precluded from prosecuting same on the basis of the following:

1. The respondent should have dealt with the initial hearing of dismissal and the appeal arising from same and the issuing of the decisions in relation to same expeditiously, which was not the case here, and more especially in relation to the hearing of the Appeal. In consequence the Tribunal finds that the delays which arose in the conduct and completion of such processes by and large lay at the feet of the respondent and were contrary to the Claimant's entitlement to natural speedy and effective justice.2. The Terms of Employment were 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.

The Tribunal finds that the Claimant has lodged her claim with the...Tribunal in time and directs the case proceed on the substantive...