ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000531

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 11/02/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

The Complainant commenced employment on the 14^th July 2014 and the employment ended on the 12^th July 2015.

Accordingly the Complainant has not got the requisite one year’s continuous service as required by the Unfair Dismissals Act, 1977 to bring forward a claim under the Acts.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Issues for Decision:

Does the Complainant have the required one year’s service to bring a claim?

Legislation involved and requirements of legislation:

Unfair Dismissals Act, 1977 quoted below

Section 1 Definitions.

1. —In this Act—

F1[‘Act of 2015’ means the Workplace Relations Act 2015;

‘adjudication officer’ has the same meaning as it has in the Act of 2015;]

F2[‘adopting parent’ means an employee who is an adopting parent within the meaning of the Adoptive Leave Act 1995;]

“contract of employment” means a contract of service or of apprenticeship, whether it is express or implied and (if it is express) whether it is oral or in writing;

“date of dismissal” means—

(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973,

Section 2 Exclusions

2. —(1) F8[Except in so far as any provision of this Act otherwise provides] This Act shall not apply in relation to any of the following persons:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him F9[…],

Decision:

The question of Notice has been considered by the Supreme Court and the following extract is quoted in Meenan Employment Law - 2014 - Chapter 19-47

“In the Supreme Court judgment in Boland’s Ltd (In Receivership) v Ward,86 Henchy J. stated that the form of notice is not provided for in the Act and does not even require it to be in writing:

“… The Act is concerned only with the period referred to the notice, and it matters not what form the notice takes so long as it conveys to the employee that it is proposed that he will lose his employment at the end of a period which is expressed or necessarily implied in that notice. There is nothing in the Act to suggest that the notice should be stringently or technically construed as if it were analogous to a notice to quit. If the notice actually given—whether orally or in writing, in one document or in a number of documents—conveys to the employee that at the end of the period expressly or impliedly referred to in the notice or notices it is proposed to terminate his or her employment, the only question normally arising under the Act is whether the period of notice is less than the statutory minimum … The legal position would be different if a plurality of notices were used to mislead an employee or to subvert the proper operation of the Act.”

In the case at hand the notice was given to the Complainant and confirmed in writing on the 12^th June 2015. Allowing for the term in the Complainant’s contract of a one month notice period the notice expired on the 12^th July 2015. There could not have been any ambiguity as the employment was terminated “with immediate” effect on the 12^th June.

The fact that the processing of his final payroll did not take place until 24^th of July 2015 and his P45 is dated that day are administrative issues (on which evidence was given by the Financial Controller for the respondent ) that do not take from the point made by Henchy.J in the quote above

“it matters not what form the notice takes so long as it conveys to the employee that it is proposed that he will lose his employment at the end of a period which is expressed or necessarily implied in that notice”

One year’s continuous employment would have been reached on the 14^th July2015.

Accordingly the Complainant did not have the required one year’s service and the claim must fall.

Dated:   30^th March 2016