Date Of Dismissal ' A Complex Issue

• Published date: 11 August 2022
• Subject Matter: Employment and HR, Contract of Employment, Unfair/ Wrongful Dismissal, Employee Benefits & Compensation, Redundancy/Layoff
• Law Firm: RDJ LLP
• Author: Ms Antoinette Vahey and Hayley Kitson

Introduction

The "date of dismissal" issue has come before the WRC for determination on a number of occasions, where an employee seeks recourse to the Unfair Dismissals Acts (the "Acts") but must have 12 months continuous service, to do so. The question that frequently arises in this context is the part played by notice, particularly where it is paid in lieu. Does the date of dismissal arise on the date notice was given, or when the notice period would have expired?

Earlier decisions determined that the date of dismissal was the date on which the notice would have expired. In Kinzinger v Marketo Emea Limited [2016] 6 JIEC 2801 there was a clause in the contract of employment which stated that once the employer exercised its right to pay the employee in lieu of notice, the employment terminated immediately, and the employee was not entitled to any further benefits. The EAT found that this clause did not operate to circumvent the strict notice requirements in the Act and parties could not "agree" to disregard the provisions of the date of dismissal as defined by the Act. Therefore, the Tribunal held that the date of dismissal included contractual notice and the employee had the requisite service to bring an unfair dismissal claim under the Acts.

In An Employee v A Technology Company [2018] (ADJ-00010670) the WRC held that the notice period was quantifiable for the purposes of the service required under the Acts. Therefore, the employee had the requisite service to pursue her claim, in which she succeeded.

Recent developments

The date of dismissal was recently comprehensively considered by the Labour Court in Action Health Enterprises Ltd v Michael D'Arcy ADJ-00014891.

By way of brief background, the employee commenced his employment under a contract of employment dated 31 January 2017. The contract of employment provided at Clause 10:

Termination with Notice:

"...employment may be terminated at any time by either you or the Partnership giving the other party at least 3 months' prior written notice, or statutory notice, if greater."

"Where notice of termination of our employment is given, whether by you or the Partnership, the Partnership will have the right to:

Pay you in lieu of notice the amount of your entitlement to basic salary in of all or part of such notice period."

On 30 November 2017, the employee was dismissed on a no-fault basis. He received a letter informing him that he would receive a payment in lieu of his contractual notice period of 3...