In Fyffes Tropical Ireland Ltd v Mr Loui Osman UDD2413, Mr Loui Osman (hereinafter “the Complainant”) appealed the decision of the Adjudication Officer (ADJ-00042768) to the Labour Court (the “Court”). The Adjudication Officer had declined jurisdiction to consider his substantive complaint because his complaint was lodged outside the statutory time limit and no grounds had been provided by the Complainant justifying an extension of time.
Preliminary Issue
The Complainant was dismissed by the Respondent on 10th March 2022. He was paid in lieu of his two-month contractual notice period. He lodged an unfair dismissal complaint with the Workplace Relations Commission (“WRC”) on 10th September 2022. The Respondent’s position was that the Complainant’s complaint was out of time (one day late). His contract of employment provided for payment in lieu of notice, and the Respondent paid the Complainant in line with the terms of his contract of employment. Payment in lieu of notice was received and accepted by the Complainant.
The Complainant’s representative argued that the Complainant’s two-month notice period should be added to his termination date for the purpose of determining the “date of dismissal” under the Unfair Dismissals Acts 1977-2015 (the “Unfair Dismissals Acts”). He referred the Labour Court to section 7(2) of the Minimum Notice and Terms of Employment Act 1973 which provides as follows:
“In any case where an employee accepts payment in lieu of notice, the date of termination of that person’s employment shall, for the purposes of the Act of 1967, be deemed to be the date on which notice, if given, would have expired.”
An alternative argument advanced on behalf of the Complainant was that the definition of “date of dismissal” in the Unfair Dismissals Acts requires an employee’s contractual notice period to be included “in the calculation of when his date of dismissal actually occurred.”
Decision – Preliminary Issue: The Court rejected both arguments made on behalf of the Complainant in respect of the preliminary issue.
In respect of the first argument, the Court pointed out that section 7(2) of the Minimum Notice and Terms of Employment Act 1973 is not applicable to an unfair dismissal complaint, referring as it does to the Redundancy Payments Act 1967 not to the Unfair Dismissals Acts.
The Court described the second argument advanced on behalf of the Complainant as “a novel interpretation of the definition of ‘date of dismissal’ in the Act” and noted that it was not in line with the established jurisprudence of the Court and of the Employment Appeals Tribunal. In that regard, the Court referred to the following summary of the legal position in Redmond on Dismissal Law at paragraph [22.63] of the Third Edition:
“If a contract lays down a notice period, it will technically be a breach of contract to give pay in lieu of notice unless this right is reserved to the employer. If it is, and an employee accepts payment of wages in lieu of notice, the date of dismissal will be the date on which termination takes effect, as the contract will have been determined in accordance with its terms.”
The Court noted that the Respondent had reserved the right to pay the Complainant in lieu of notice in his contract of employment, and that the Complainant was in fact paid in lieu of his contractual notice. The Court was satisfied that for the purposes of the Unfair Dismissals Acts, his date of dismissal was 10th March 2022.
The Court also addressed an argument on behalf of the Complainant that the Complainant had not freely accepted payment in lieu of notice because the Respondent had not advised him to obtain legal advice before foregoing his right to notice. The Court found that the Complainant’s right in this case was to notice or to payment in lieu of notice. The Court was satisfied that the fact that the Complainant had signed his contract of employment meant that he had agreed to the Respondent’s reservation of its right to pay him in lieu of notice.
Application to Extend Time
The Complainant’s application for an extension of time for the referral of his unfair dismissal complaint to the WRC was based on a misinterpretation of the statutory time limit in section 8(2)(a) of the Unfair Dismissals Act. The Court accepted the Respondent’s position that this was essentially an application based on ignorance of the law. The Complainant’s complaint was referred to the WRC one day late.
Decision – Application to Extend Time: In considering the Complainant’s application for an extension to the statutory time limit, the Court referred to the decisions of Cementation Skansa (formerly Kvaerner Cementation Limited) v Carroll DWT0425 and Salesforce.com v Leech EDA1615 which addressed the meaning of “reasonable cause” under paragraph (b) of section 8(2) of the Unfair Dismissals Act.
The Court was not satisfied that the Complainant’s misinterpretation of the statutory time limit satisfied the test for establishing reasonable cause. The Court refused the Complainant’s application to extend time and upheld the decision of the Adjudication Officer.
Takeaway for Employers and Employees: This decision is helpful in clearly setting out the correct legal position regarding the date of dismissal for the purposes of the Unfair Dismissals Acts, in cases where an employer pays an employee in lieu of notice in line with his or her contract of employment.
The decision also highlights the need for employees to be very careful of adhering to statutory time limits when referring a complaint to the WRC. Despite the very short delay of one day in this case, and the unlikely prejudice to the Respondent, an extension was refused on the basis that ignorance of the law was not considered sufficient to satisfy the test for “reasonable cause”.
Links – https://www.workplacerelations.ie/en/cases/2024/march/udd2413.html
Author – Jenny Wakely
26th April 2024
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