by Breda O'Malley , Rachel Kelly January-11-2018 in Employment Law


The High Court has confirmed a decision of the Employment Appeals Tribunal (“EAT”) in which it was held that the employee’s date of dismissal for the purposes of the Unfair Dismissal Acts 1977-2015 (“the Acts”) was the date on which her internal appeal against her dismissal was concluded and not the date, she was actually dismissed from her employment.

This is a significant decision for employers as it could allow employees to bring a claim for unfair dismissal, who would not otherwise meet the one year’s service requirement to bring a claim under the Acts. In the case, the employer, UPC sought confirmation from the High Court that the EAT was mistaken in holding that it had the jurisdiction to hear and determine the employee’s unfair dismissal claim.

UPC argued that the claim was submitted by the employee outside the time limit provided by the Acts. Under the Acts, an employee has 6 months from the date of dismissal to submit a claim to what is now the Workplace Relations Commission (or 12 months, if an adjudicator is of the opinion that the delay was due to reasonable cause).

The claim was not submitted until 7 January 2013, which was in excess of twelve months following the date of dismissal on 18 October 2011.

The employee had been employed by UPC from 27 February 2008, until her dismissal on the grounds of serious misconduct.

The employee’s solicitors wrote to UPC on 20 October 2011 stating that the employee wished to appeal the Company’s decision. UPC denied ever receiving the letter and the employee’s P45 was issued.

For unknown reasons, UPC did not conduct the appeal hearing until 6 September 2012, following which the decision to dismiss the employee was upheld.

The EAT found 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 prescribed by the Acts.

The EAT were of the view that UPC, should have dealt with the appeal process in an expeditious manner and that their failure to do so was contrary to the employee’s entitlement to speedy natural and effective justice.

The EAT’s decision hinged on the fact that the employee’s contract was silent on her status during her dismissal and this had caused ambiguity, which led to the employee believing that her dismissal was stayed pending the outcome of the appeal.

The High Court agreed with the determination of the EAT and refused UPC’s application. The Court was of the view that there was no clear error of jurisdiction or law and held that if UPC was unhappy with the decision of the EAT, that it should appeal through the normal statutory scheme, rather than initiate a judicial review process.

The High Court made a number of references to the fact that the Company’s appeal procedure did not specifically address the status of the employee whilst appealing a dismissal decision.

The High Court and the EAT was also critical of the significant delay in conducting the appeal process.

It appears that if the employee’s contract had not been silent on her status during the appeal process and if there had not been such a significant delay, that the EAT and the High Court may have decided differently. 

 

Key Considerations

A number of helpful lessons may be discerned from this case;

  • An Employer’s disciplinary policy should clearly confirm the dismissed employee’s status during any appeal against his/her dismissal. In other words, the policy should confirm that the employee’s dismissal will not be deemed to be stayed during the appeal process.
  • The letter issued to an employee following their dismissal, should confirm the employee’s right to appeal the decision and clearly confirm his/her status during the appeal.
  • Employers should carry out an appeal as soon as reasonably practicable. This will minimise the risk of the employee successfully arguing that he/she has not been afforded fair procedures and natural justice.

If the employer is to follow the above, this may alleviate the risk that an employee could successfully bring a claim for unfair dismissal after the expiration of the 6-12 months period prescribed in the Acts.


For further information please contact Breda O'Malley bomalley@hayes-solicitors.ie or Rachel Kelly rkelly@hayes-solicitors.ie at Hayes solicitors.

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