ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002110

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

Date of Adjudication Hearing: 28/07/2016

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and under Section 7 of the Terms of Employment ( information) Act, 1994 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). 

Preliminary Application in relation to the Unfair Dismissals Act Claim.

Respondent’s submissions.

The claimant is not entitled to make a claim under this legislation and the adjudicator has no jurisdiction to hear the matter under the Unfair Dismissal Act, 1977 to 2015.

“Section 2 (1) This act shall not apply in relation to any of the following persons:

(a)          An employee who is dismissed who at the date of his dismissal, had less than one years continuous service with the employer who dismissed him and whose dismissal does not result wholly or mainly from the matters referred to in Section 6(2)(f)”

The complainant was employed from the 10.03.2015 to the 18.02.2016.

The complainant was given notice on the 18^th February, 2016 by the respondent of their intention to terminate his contract of employment. Statutory notice entitles him to one weeks notice. An additional one weeks pay was given to him as a goodwill gesture. Therefore at the very latest his date of cessation is the 3^rd March, 2016. Even if one breaks it down into weeks served the complainant worked 49.2 weeks and when he additional two weeks are added it amounts to 51.2 weeks.

Complainant’s submissions.

The complainant conceded that his start date was the 10^th March, 2015 and that he received notice of the respondent’s intention to terminate his contract on the 18^th February, 2016. He also conceded that the two weeks notice period should be applied bring his date of termination to the 3^rd March, 2016. He worked 50 weeks and with the additional 2 weeks notice that brings him up to 52 weeks. The act is silent on the issue of part weeks or days per weeks and he having worked part of a week should be entitled to claim a full week as per his interpretation of the act.

Finding

It is a statutory requirement pursuant to the Section 8 of the Unfair Dismissal Act that the complainant have one years continuous service. The complainant concedes that his start date was the 10^th March, 2015 and his date of cessation was the 18^th February, 2016 . The complainant is entitled to one weeks notice pursuant to the 4 (2) (a) Minimum Notice and Terms of Employment Act. Even adding that Notice period to his service together with the ‘ goodwill’ week it brings his date of cessation to the 3^rd March, 2016 six days short of the statutory requirement. It is on that basis that I find I have no jurisdiction to claim pursuant to Section 8 (1) Unfair Dismissals Act.

Terms of Employment ( Information) Act, 1994

Complainant’s submissions.

The complainant was not issued with a contract of employment. He requested, on numerous occasions, that the Respondent issue him with one but despite several demands none was forthcoming.

Respondent’s submissions

The respondent accepts that it did not issue the complainant with a contract of employment/ terms of employment and states that it was an oversight. The Respondent is a small family run business.

Finding

The respondent has breached its statutory obligation to provide the complainant with a written statement of his terms and conditions of employment.

Decision:

Section 41(4) & 80 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

I do not have jurisdiction to hear a claim pursuant to Section 8 (2) of the Unfair Dismissals Act 1977.

I award the complainant the sum of € 2,040.00 pursuant to Section 7 (2) (d) Terms of Employment

( Information) Act, 1994

Dated:   1^st September 2016