Employee Dismissal- When does it take effect?
By Deirdre Malone
29 November, 2017
What is the date of an employee’s dismissal – is it the day the decision is first communicated to the employee, or is it the day that their appeal hearing confirms the decision to dismiss? The High Court says that it is not until the appeal is heard and the decision to dismiss is upheld.
Background
UPC Communications (now Virgin Media Ireland) brought High Court Judicial Review proceedings to question the jurisdiction of the Employment Appeals Tribunal (“EAT”) to hear an unfair dismissal claim brought by one of its former employees. The High Court Judgement is important because the employee was dismissed in October 2011, her appeal was not heard until September 2012, and she filed an Unfair Dismissal claim in January 2013.
The Company stated that the employee’s claim was too late because she was dismissed in October 2011 and she did not file her complaint for 15 months. The employee was given a termination letter confirming the date of dismissal, a P45, and she was paid for one month’s notice.
The Company’s policy did not state what happens once a dismissal takes place. The letter dismissing the employee was silent as to what her status would be in the event that she chose to appeal the decision.
The High Court disagreed with the Company’s argument and held that the employee’s dismissal did not take effect until her appeal was heard almost one year later in September 2012. As the claim was filed in January 2013, it was within the six month time limit. The case has now been sent back to the Employment Appeals Tribunal to determine the substantive facts.
What is the law?
An employee has 6 months from the date of dismissal to file a complaint under the Unfair Dismissals Acts to the Workplace Relations Commission. This can be extended in exceptional circumstances to 12 months.
The Company introduced case law from the United Kingdom and Scotland, to support its plea that dismissal takes effect from the first date of dismissal and that the employee is suspended for the intervening period, pending the determination of an appeal. In other words, if the employee successfully appeals the decision to dismiss, then they are then re-instated and paid in full for the time between the date of dismissal and the date of re-instatement.
The EAT in this case stated that because the employee’s contract was silent on the implications and effectiveness of the dismissal, leading to a total lack of clarity, that the employee was entitled to believe that her dismissal was stayed pending the outcome of an appeal. The High Court agreed with the EAT's assesment.
Key takeaways for employers
- Ensure that the disciplinary policy outlines the sanctions that can be applied and the implications in enforcing a dismissal.
- In the event of a dismissal, ensure that the employee’s status pending the appeal is clear and certain in the termination letter.
- Process an appeal expeditiously. 11 months to hear an appeal is not in either party’s interests. As an employer, the risk of reinstatement with an award of back-pay to the employee is a high cost for failing to hear an appeal promptly.
For more information on the content of this Insight contact: Deirdre Malone, 021 4802746 or Deirdre.malone@rdj.ie.