Timing is everything
An interesting recent case from the Employment Relations Authority addresses whether and when a Personal Grievance can be lodged outside of the statutory 90 day time period.
The Authority was asked to determine whether a Grievance had been raised with her employer within 90 days of the grievance occurring and, if the employee was adjudged to have failed to raise her grievance within the time period, whether the employee could apply for leave to raise that grievance on the basis of "exceptional circumstances" as per the Employment Relations Act (the Act).
The employee had been employed at a café and, when it was sold to a new owner, remained as an employee. Following incidents involving customers and an informal meeting, the new owner told the employee ‘to go home and think about whether or not she wished to continue working at the café.'
Later that evening the employer texted the employee saying, ‘think about it for the week and come back on Friday.' The following day, 11 March 2014, the employee received another text from the employer saying ‘I take your silence to mean you no longer want to work here, I will pay your final pay.'
On the 4 June 2014 the employee's legal advisors wrote to the employer, raising a Personal Grievance. The letter was posted to the employer's home address.
The legal advisors for the employer responded citing
(a) the grievance had been raised outside of the 90 day time limit
(b) the letter was incorrectly addressed to the employers registered office, and
(c) the employer disputed that the employee had been dismissed.
(The Authority noted that when it had couriered a document relating to the Hearing, it was to both the registered office and the home address of the sole director/shareholder. It was signed as being received at both addresses.)
The Authority took into account when the employer received the grievance and found that while it was outside the time period by the barest of margins - the grievance was in fact outside the statutory 90 day period.
The Authority then had to determine if the employee could pursue a grievance on the basis of "exceptional circumstances".
It was found that there was no evidence that the employee had been provided with an explanation with regards to raising or resolving employment relationship problems as required by the Act - usually in the employment agreement but in this case, not included.
The Authority also noted the 90 day limit had been exceeded by one day and took into consideration that the employee had been unwell following the termination and that medical clearance had been granted a couple of days prior to raising the personal grievance.
Lastly, it is up to the employer to show it would be substantively disadvantaged by the granting of leave to raise the grievance after 90 days. The Authority determined that the employer could not show this.
The outcome was that the employee was granted leave to bring a personal grievance against the employer. The likely sequence is that the PG would have been lodged and a settlement would have been made after mediation.
This decision signals a couple of points. Firstly, the Employment Relations Authority will grant leave to bring a grievance outside of the 90 day period in exceptional circumstances. Secondly, there had been no disciplinary process undertaken by the employer prior to the decision to dismiss - this matter is yet to be resolved.
A costly error for the employer, no doubt. Importantly, this case shows that the all disciplinary procedures do need to be advised to employees, and followed, before contemplating a dismissal.