UD699/2012

 EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Mr R. Maguire BL

Members:     Mr T. O’Grady

                     Mr S. O’Donnell

heard this claim at Dublin on 27 August 2013

Representation:

Claimant: 

Respondent:

The determination of the Tribunal was as follows:

Determination:

The claimant began an apprenticeship as an electrician with the Building Maintenance Service Division (BMS) of the respondent on 17 February 2000. The duration of the apprenticeship, which encompasses seven phases, is for a minimum of four years. The letter of appointment dated 10 February 2000 describes in regard to the Nature and Duration of the Contract as follows:-

“This is a fixed term contract to which the provisions of the Unfair Dismissals Act, 1977 will not apply. The contract will commence on 17 February 2000 and will finish on completion of your apprenticeship……………”

Unfortunately due to various circumstances the term of the apprenticeship was considerably protracted such that the claimant did not complete the apprenticeship until 28 October 2011. In particular the claimant had difficulty with phase 6 of the apprenticeship, the last of the three off the job phases of the apprenticeship, and following an appeal was allowed to re-sit the phase 6 examination after attending the appropriate training course from September to December 2010. The respondent wrote to the claimant on 16 September 2010 about this matter. Paragraph three of this letter is in the following terms:-

“Since the introduction of the moratorium on recruitment and promotions in the Public Service the OPW has not been able to offer permanent employment to apprentices who have successfully completed their apprenticeship. For this reason also it has not been able to indefinitely retain apprentices who have not been successful in their final apprentice examinations. It will be necessary for you to pass all your final phase examinations in December 2010. If you are successful in these examinations you will be able to finish the on-site phase 7 of your apprenticeship, which FAS has stated will be necessary for you to repeat. However if you are not successful in these examinations your apprenticeship will be terminated. I am aware that the acting Administration Manager (AM) of BMS has already explained this to you at a recent meeting.”

The claimant then successfully completed phase 6 of the apprenticeship and moved on to phase 7. This was interrupted by an absence of some six months on account of a knee injury sustained by the claimant who required surgery. On 19 September 2011 the claimant’s assessor signed off on the claimant’s completion of phase 7 of the apprenticeship.

On 27 September 2010 AM wrote to the claimant with Notice of the Termination of his Contract of Employment which was to terminate on 2 November 2011. On 10 November 2011 FAS confirmed that the claimant had successfully completed his apprenticeship on 28 October 2011.

Section 4 of the Unfair Dismissals Acts provides:-

“This Act shall not apply in relation to the dismissal of a person who is or was employed under a statutory apprenticeship within 6 months after the commencement of the apprenticeship or within 1 month after the completion of the apprenticeship.”

The date of the dismissal was 2 November 2011; this is within one month of the successful completion of the apprenticeship on 28 October 2011. Accordingly, the Tribunal is satisfied that there is no jurisdiction to hear the claim under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)