29 March 2021
A recent Employment Court hearing considered whether a personal grievance for unjustified dismissal was raised within 90 days.
Sonia Maxwell was dismissed from her role with the Disabilities Resource Centre Trust for providing false timesheets. The Employment Relations Authority held that Ms. Maxwell did raise her grievance within 90 days of her dismissal, but this was challenged by the Trust in Court.
In 2018, the Trust learned that Ms. Maxwell had claimed time for personal care and household management services for someone who was, at the time, overseas for three months. The Trust conducted a disciplinary process, which led to her dismissal for providing false timesheets. Ms. Maxwell claimed the client’s family had advised the Trust that she was to continue providing household management services while the client was away. She stated she did not intend to deceive the Trust.
87 days after her dismissal, Ms. Maxwell sent a letter to the Trust, drafted by her advocate. The Trust was surprised when it received the letter and claimed it had no idea of the basis on which Ms. Maxwell claimed to have been unjustifiably dismissed. The Trust did not respond, as it considered the letter insufficient to raise a personal grievance. The advocate wrote another letter a month later that provided sufficient detail, but this was more than 90 days after the dismissal. The Trust claimed Ms. Maxwell had not raised a personal grievance in time.
The Employment Relations Authority determined that the initial letter was sufficient to raise a personal grievance when looked at alongside other communications during the disciplinary process.
The Employment Court did not accept that statements Ms. Maxwell made during the disciplinary process prior to dismissal formed part of the communication of the personal grievance. It found those communications asserted her opinion to not be dismissed, not to claim that the dismissal was unjustified.
However, it did find her first letter sufficient to raise a personal grievance and noted that Ms. Maxwell had invited the Trust to respond. She was held to have raised the personal grievance within the 90-day timeframe. The statement in her letter that the dismissal was “unfair” was enough to raise a personal grievance.
The Court noted that even if the first letter had not been sufficient to raise a personal grievance, exceptional circumstances would have allowed her to raise it out of time – namely, her reliance on an agent. Ms. Maxwell had requested her representative raise the personal grievance for her and provided them with the details. It would not have been fair for Ms. Maxwell to be deprived of that opportunity due to the failing of her representative. Justice would have required Ms. Maxwell to proceed with her personal grievance.
Parties were directed to agree to costs between themselves.