SUBMITTING CLAIMS TOO EARLY*

SUBMITTING CLAIMS TOO EARLY*

This issue arose in the case of AA Euro Recruitment Ireland Ltd and Padraig Cotter, UDD 2228.

In this case the Court addressed the issue as to whether the complaint was submitted outside the time limits.

The Court pointed out that it drew both parties attention to the case of Alan Brady -v- Employment Appeals Tribunal 2015 26 ELR1 but that neither party made a Submission in respect of same.

The Court pointed out that it was not disputed that the complaint was lodged with the WRC on the 3rd December 2019, being three days before the complainant by his own evidence to the Court stated was the date of his dismissal.

The Court pointed out that Section 8(2)(a) of the Act states that a claim for redress should be initiated:

within a period of 6 months beginning on the date of the relevant dismissal”.

The Court pointed out that they found that the dismissal occurred on the 6th December 2019.  The Court pointed out that unlike the Brady case, they cited that the complainant did not submit to the Court that the complaint was made during the notice period.  It was pointed out that it was not disputed that the complaint was issued two weeks into a temporary lay-off which was provided for in the contract.  The Court determined that the complaint was not submitted within the Statutory time period.

The issue of when a dismissal takes place is often one that can be uncertain.  Is it the date of the dismissal? Is it the date that the notice period would have collapsed?

To avoid any difficulties, it is as well to cover off all instances.  If an individual is dismissed for example has a notice period of six months, then to ensure that the claims are in, in time, a complaint can issue after the date of dismissal.  Subsequently, a claim can be lodged when the full notice period would have expired.  The WRC can be requested to amalgamate the claims.  Then there is no issue that the claim is in time.  The reason for saying this, is that at times there are issues as to whether the dismissal was effective as on the date of the dismissal or at the end of the notice period.  This argument regularly arises when the employee is paid in lieu of notice. 

Our understanding of matters is that where an employee requests a notice period be paid to them, then in those circumstances the date of dismissal can well be the actual date.  Where they do not request the notice payment, but it is still paid to them, there is an argument that the dismissal does not effectively take place until after the notice period has expired. 

To avoid the type of problems which arose in this case it is as well to cover both off by issuing two claims and requesting that the claims are then amalgamated together.

*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.

*In contentious cases a solicitor may not charge fees or expenses as a proportion or percentage of any award or settlement.

Richard Grogan

Author Richard Grogan

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