Introduction – Date of Dismissal
An interesting case recently came before the Workplace Relations Commission which examines the effective date of dismissal for the purposes of the Unfair Dismissals Act, 1977 in circumstances where there is an appeal to that dismissal.
In A Caretaker v An Education Provider (ADJ00019732), the employee was dismissed on grounds of gross misconduct following a colleague’s allegation of sexual harassment. This incident arose following work drinks and the employee concerned was dismissed following an investigation and disciplinary process. The employer regarded his conduct as constituting gross misconduct, therefore warranting summary dismissal.
Date of Dismissal – Subject to Appeal?
The letter provided to the employee noted that his employment would be terminated “with immediate effect” but that should his appeal, if exercised and successful, would see his employment being “retrospectively reinstated”.
The employee was dismissed on 30 May 2018. The outcome of the appeal was given on 14 November 2018.
The employee argued that he should be permitted to lodge a complaint to the Workplace Relations Commission within six months of the outcome of the appeal, that being 14 November 2018. The respondent employer contested this proposition.
Date of Dismissal – Case Law
The Workplace Relations Commission noted that the Unfair Dismissals Act defines ‘dismissal’ as including “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.”
The Act further provides that ‘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…”
In Devaney v DNT Distribution Company Limited (UD 412/1993), the Employment Appeals Tribunal considered what amounted to a dismissal. It held “… where words are genuinely ambiguous what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question, what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention.”
The complainant relied on Ryan v UPC Communications Ireland Ltd (UD13/2013). Here the Employment Appeals Tribunal determined “The Terms of Employment were silent on the implications and effectiveness of the dismissal once issued and that when an appeal was lodged that this did not act a stay on such dismissal, then in that event, the Tribunal believes this led to a 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 a judicial review of the EAT decision [2017] IEHC 567, the High Court refused to quash this preliminary decision as it was one within the jurisdiction of the EAT.
Desmond Ryan, BL in ‘Redmond on Dismissal Law’ 3rd edition [para 22.70] comments that the EAT decision in Ryan v UPC is “somewhat of an outlier authority distinguishable on its facts in light of the extremely lengthy delay on the part of the employer.”
Date of Dismissal – Decision
That being the case, the Adjudication Officer found that whether an appeal operates as a stay on a dismissal is a matter of construction of the relevant procedures and the correspondence arising from the dismissal. There are circumstances where the procedures are explicit that the sanction does not take effect until the conclusion of the appeal (see Wallace v Irish Aviation Authority [2012] IEHC 178). There are circumstances where there is ambiguity whether the appeal operates as a stay on a dismissal (as was held by the EAT in Ryan v UPC). While it is rare for a dismissal to be stayed pending an appeal, this is a matter of construction of the relevant procedures and correspondence.
It is possible to argue that there was some ambiguity in the procedure. It refers to the appeal being “a final decision” albeit in relation to warnings. It further states that a decision to dismissal “will stand” unless reversed on appeal. Despite these possibilities, the Adjudication Officer found that the policy and contemporaneous correspondence were sufficiently clear that the date of dismissal was the 30 May 2018, notwithstanding the right to appeal.
Further Information
For further information, please contact the author of this article, Barry Crushell.
