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Date of Dismissal is Date Statutory Notice Expires

NOT date notification of appeal decision

Date of Dismissal is Date Statutory Notice Expires – NOT date notification of appeal decision


Many employees may be confused as to the date of dismissal for the purposes of the Unfair Dismissal Acts where they have been given the right of appeal in relation to a decision to dismiss.

In Michael Gaboor v NYD Limited UD 2436/11, MN2435/11, RP2968/11 and WT 973/11 the Tribunal was asked to determine the date of dismissal and whether the claim lodged on 23rd December 2011 was outside the six month time limit permitted under Section 8(2) of the Unfair Dismissal Act 1977 (as amended).

Background

The claimant was informed on 24th May 2011 of a decision to dismiss him after a disciplinary meeting. It was confirmed to the claimant that he was entitled to two week’s basic pay to be paid in lieu of notice and therefore his contract would cease on 7th June 2011. The claimant was also told he could appeal the decision within five days of receipt of the letter. The appeal meeting was heard on 20th June 2011 and on 24th June 2011 the claimant received a letter dated 20th June 2011 from the respondent confirming that the decision to dismiss was upheld.

Determination

The Tribunal considered Section 8(2) of the Unfair Dismissal Act 1977 (as amended) and noted that the claim for redress must be made within six months of the date of the relevant dismissal. The Tribunal then looked at the definition of “date of dismissal” under Section 1 of the Acts and noted that it is the date on which proper notice, if given, under the Minimum Notice Acts would expire.

The respondent contended that the date of dismissal was 7th June 2011, the date notice expired and therefore the claimant was out of time. The claimant contended that the date of dismissal was the date he was notified that his appeal was unsuccessful on 24th June 2011 and therefore the claim lodged on 23rd December 2011 was within time.

The Tribunal referred to the caselaw in the legal submissions of the parties in Tom O’Neill v Bank of Ireland [1993] ELR 145 and Savage v J Sainsbury Limited [1980] IRLR 90 where a contractual term governed the interim period between initial notification of the dismissal to the employee and notification of the decision to appeal.

In the O’Neill case the respondent’s disciplinary procedure provided for an internal appeal “pending which no disciplinary action will be taken” and a further external appeal. The Employment Appeals Tribunal found that the dismissal became effective prior to the external appeal. In the Savage case, the employee’s contract of employment provided “Pending the decision of an appeal to a Director against dismissal, the employee will be suspended without pay, but if reinstated will receive full back pay for the period of suspension“. The English Court of Appeal construed the term to mean that the date of dismissal is the date the initial decision to dismiss is notified to the claimant and not the date he is notified the appeal failed.

The decision in Savage was approved by the House of Lords in West Midlands Co-Op Society Limited v Tipton [1986] IRLR 12 where Lord Bridge of Harwich agreed that in “the absence of an express contractual provision to the contrary” that “the effective date of dismissal is the date of the initial notification of dismissal to the employee“.

The Tribunal concluded that the above statement was the correct statement of law and there was no term in the claimant’s contract of employment saving the contract pending the hearing of the appeal. The date of dismissal is not the date the claimant was notified that the appeal was unsuccessful but the date his statutory notice expired on 7th June.