ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00002947

Parties:

Complaint(s):

Date of Adjudication Hearing: 05/04/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

Location of Hearing: Room G.05 Lansdowne House

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant commenced employment as a hair stylist with the respondent, a hair salon owner in April 2015 (the exact date of commencement was disputed by the parties). He was paid a gross monthly rate of €562.00 and his hours of work varied but were in or around 40 hours per week. Employment ended in either March or April 2016 when the complainant was dismissed by the respondent (the exact date of the termination was disputed by the parties). The complainant submitted a complaint under the under Section 8 of the Unfair Dismissals Act, 1977 which was received by the WRC on 27 April 2016.

Preliminary Issue:

The respondent put forward that the complainant had less than one year's service and was thus not protected by the Unfair Dismissals Act. The respondent submitted that the complainant commenced employment with the respondent on Monday 6^th April 2015 and that his employment ended on 26^th March 2016. The complainant was paid one week's pay in lieu of notice.

To support this contention the respondent referenced the complainant's Contract of Employment, his first payslip and his P60 which all indicate a start date of 6^th April 2015. The respondent also cited the complainant's final payslip, dated 29^th March 2016 and his P45 showing a last date of employment as 2^nd April 2016.

In response the complainant stated that he had commenced work with the respondent on Wednesday 1^st April 2015 and that although his Contract of Employment stated that his commencement date was the 6^th of April 2015 the contract was unsigned.

Findings and Conclusions:

I am satisfied that the complainant commenced employment with the respondent on 6^th April and was dismissed on 23^rd March 2016.

Section 1 of the Act provides that, 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, then the date of dismissal is the date on which that notice expires. The 1973 Act stipulates than if an employee has been in continuous service of his employer for less than two years he is entitled to one week's notice. The complainant's contractual notice period was in accordance with the 1973 Act. The complainant's notice therefore expired on 2 April 2016.

The complainant's length of service in this case was therefore from 6^th April 2015 to 2 April 2016.

Under the terms of section 2 (1) (a) of the Unfair Dismissals Act, dismissed employees are precluded from bringing a claim if they have less than one year's continuous service with the employer who dismissed them.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.

I find that the complaint is not upheld.

Dated: 23^rd May 2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

Key Words: Length of Service, Notice, contract of employment.