ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00001788
| Complainant | Respondent |
Anonymised Parties | A Worker | A Community Creche |
Representatives |
|
|
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00002467-001 | 08/02/2016 |
Date of Adjudication Hearing: 19/10/2018
Workplace Relations Commission Adjudication Officer: Louise Boyle
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaint 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 worker detailed that her employment was terminated owing to her pregnancy. |
Summary of Respondent’s Case:
The respondent detailed that there was a preliminary issue as they were not the correctly name respondent.
It was put forward that they had taken on the complainant as part of a return to work scheme with Organisation X. It was detailed that it was, therefore, Organisation X and not the named respondent (Organisation Y) who were the employer. Evidence was provided that Organisation X never paid the complainant, never gave her a contract and never gave her wage slips.
Substantive Issue It was detailed that the respondent advised Organisation X that they no longer wanted the complainant placed with them as the complainant failed to communicate with them regarding her absence on a regular basis. It was also detailed that this may have been the fault of Organisation X but that regardless Organisation Y were not the correctly named respondent. During her time with them, the respondent confirmed that the complainant got on well with staff and children and there were no issues in that regard.
Her start date was disputed and it was detailed that it was 4th August 2015. |
Summary of Complainant’s Case:
In the answer to the preliminary issue, the worker detailed that it was difficult to ascertain who was the correct employer. She confirmed that her pay slips detailed that Organisation X was the employer but it was her understanding that she was terminated by Organisation Y who was her employer.
She detailed that she was placed at the creche as part of a return to work programme on 27th July 2015. She informed the respondent that she was pregnant and she suffered pregnancy related illness for which she regularly provided sick certs and detailed that her employment was terminated on 16th January 2016 owing to her pregnancy.
She detailed that she advised both Organisation X and Organisation Y when she would be absent. She was told by Organisation X that Organisation Y did not want her back as there were timekeeping issues. |
Findings and Conclusions:
This case had been previously heard by another Adjudicator when it was adjourned but due to unforeseen circumstances it had not been possible to reschedule the hearing with the same Adjudicator. Both parties were advised that I would hear it as a new hearing.
It was accepted by both parties that while the complainant does not have the requisite period of service in order to come under the protection of the act, her claim comes under the exceptions stipulated in section 6 (2) of the Act.
Preliminary Issue I note that the complainant believed she was employed by the respondent, however, no evidence was provided to suggest that the named respondent – Organisation Y - was her employer. I note also that the wording in the “policy for participants” is signed by the Complainant wherein she is detailed as a “placement worker” and the complainant accepted that wage slips named Organisation X. During the hearing the complainant accepted that there was much confusion over who was the actual employer.
With regards to the issue regarding the correct named respondent, I have no option but to find that the Respondent herein has no liability to the Complainant under the Acts. |
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 respondent named in this case is not the correct respondent and the complaint is, therefore, dismissed. |
Dated: 30thOctober 2018
Workplace Relations Commission Adjudication Officer: Louise Boyle
Key Words:
Maternity, unfair dismissal, preliminary issue |