ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00010366

Parties:

	Complainant	Respondent
Anonymised Parties	Assistant Psychologist	Public Body

Representatives

McElwee Solicitors

Office of the Chief State Solicitor

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-00013421-001	30/08/2017

Date of Adjudication Hearing: 17/04/2018

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 8 of the Unfair Dismissals Act 1977,following 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 complaint submitted was that the complainant was unfairly dismissed. The Complainant’s representative sought to have the claim amended to one of alleged victimisation under Section 74 (2) of the Employment Equality Acts 1998 and 2004.

Summary of Complainant’s Case:

The Complainant was employed by the Respondent from 8th August 2016, having been notified of the offer of a role on 20th July 2016. The notice to cease her employment was received on 29th June 2017 and the day of cessation of the said employment was 7th July 2017. It is submitted that the Respondent disingenuously engineered the cessation of the Complainant’s employment contract without properly engaging the Complainant with due process. While it is acknowledged that the Complainant was on Job bridge prior to her contract of employment, and that Job bridge interns are specifically excluded under the Protection of Employees (Temporary Agency Work) Act 2012, it is submitted that the Complainant’s Job bridge scheme ended on 29th July 2016 when the Complainant continued her employment with the Respondent and as such should be considered to qualify by having 11 months (sic) and 8 days service with the Respondent from the date of the cessation of her Job bridge internship for the purposes of unfair dismissals legislation.

It is submitted that the Complainant’s complaint be amended to that of a complaint of victimisation as provided for in Section 74 (2) of the Employment Equality Acts 1998 and 2004, specifically that victimisation has occurred by dismissal of the employee for having given notice of an intention to take an action i.e making a complaint of discrimination. Specifically, the Complainant’s solicitor wrote to the Respondent on 16th June 2017 advising them of the possibility of a complaint to the Workplace Relations Commission. An extension of time to amend the complaint is sought as provided for under Section 41 of the Workplace Relations Act 2015. It is further submitted in support of the request to amend the complaint that in a decision of the Labour Court in An Employer v A Worker (EDA27/2014) and County Louth VEC v Equality Tribunal 2009 IE HC370, it was acknowledged that the complaint form was only intended to set out in broad outline the nature of the complaint and that it was found to be permissible to amend the claim set out therein, “so long as the general nature of the complaint … remains the same”.

Summary of Respondent’s Case:

The following is a summary of the Respondent’s initial submission and supplemental submission lodged following the hearing:

The Complainant commenced employment with the Respondent on 8th August 2016 on a fixed-term contract of 12 months. Her contract specifically provided “Should your service be unsatisfactory, the appointment may be terminated at any time during the contract period”. During the Complainant’s employment, work performance and associated matters arose, including interpersonal difficulties and tension with her colleagues. Supervision sessions and developmental feedback failed to result in any improvement and the Complainant’s employment was terminated by letter dated 29th June 2017 which termination was effected on 7th July 2017. The Complainant had been given the opportunity to make a submission before then but no submission was received nor was a meeting sought.

The Respondent raised a preliminary issue in regard to jurisdiction. It is contended that the Adjudication Officer does not have jurisdiction as the Complainant does not qualify to have her complaint heard due to the fact that she had less than 12 months continuous service. This impediment is outlined at Section 2 (1) of the Unfair Dismissals Act 1977. The Complainant was engaged on a fixed term contract from 8th August 2016 and her employment was terminated on 29th June 2017 and was effected on 7th July 2017. Prior to commencement of the Complainant’s fixed term contract she was engaged under the Job bridge internship scheme from 2nd November 2015 to 29th July 2017. The Job bridge National Internship Scheme provided for work experience in a variety of public and private sectors. Section 16 of the Social Welfare and Pensions Act 2011 makes it clear that individuals engaged under the scheme are not considered as an employee of their respective host organisation. The time spent by the Complainant under the Job bridge scheme does not count towards the one year’s continuous service required to bring a claim for unfair dismissal. The Complainant is therefore excluded from availing of the provisions of the Unfair Dismissals Act.

In relation to the Complainant seeking to amend the complaint, it is noted that by letter dated 13th April 2018 the Complainant’s Solicitor stated that although the initial claim was laid in respect of unfair dismissal, an extension of time is now being sought to include an amendment to the claim being discrimination under the Employment Equality Act. It should be noted that this letter does not state what act of discrimination is being alleged. The letter seeks to rely on a decision of the Labour Court in An Employer v A Worker (EDA27/2014) and a decision of the High Court in County Louth VEC v Equality Tribunal [2009] IEHC 370 in relation to the amendment of the complaint form. It is the Respondent’s position that the Complainant’s Solicitor has included a completely inaccurate summary of the decision of Mr Justice McGovern in the High Court case. It is submitted that the factual matrix which was before the High Court is entirely different to the case herein where the Applicant is now seeking to bring a claim on entirely new grounds under different legislation by simply alleging that the facts which would ground such a claim had already been laid out. It is submitted that the case law relied on does not therefore assist the Complainant.

In relation to the claim of victimisation as sought to be heard under the Employment Equality Act, the submission was made on the Complainant’s behalf at the hearing that the claim under section 74(2) is a “stand-alone” claim and on that basis the victimisation did not have to relate to any of the nine grounds. No ground of discrimination was in fact alleged and it appeared to be accepted that the Complainant did not have any complaint based on the nine grounds. It is submitted that it is incorrect to suggest that there is no requirement to link the claim of victimisation to any of the nine prohibited grounds of discrimination. It is clear from the jurisprudence of the relevant bodies that deal with the Employment Equality Act that this is the case (see Department of Defence -v- Tom Barrett 2010EDA / 1017, Mary Higgins -v- Permanent TSB DEC-E2016-037). The required link to the prohibited grounds was reinforced in Moriarty v Duchas (DEC-E2003-013) where the Equality Tribunal emphasised that the act which results in victimisation must be connected to a reliance on rights in the Employment Equality Act. The Complainant had alleged that she was victimised for discovering an anomaly in the rostering arrangements which resulted in certain staff being due arrears of pay. The Tribunal found that victimisation had not occurred as the issue was not one of equality. It determined that the Employment Equality Act required the Complainant to “demonstrate the connection between his or her actions in relation to defending entitlements under the Act and the treatment complained of”. It is submitted that the Complainant herein has not shown any discrimination under the Employment Equality Act or any action taken in defending such entitlements such as could ground a claim of victimisation under the Employment Equality Act.

In summary, the Complainant does not have one year’s continuous service required to ground a claim for unfair dismissal under the Act. The Complainant is not entitled to amend her claim at this stage to include an entirely new claim. The Complainant has not outlined any act which is related to discrimination on one of the prohibited grounds such as would allow a claim of victimisation under the Employment Equality Act to be heard.

Findings and Conclusions:

The complaint received on 30th August 2017 and submitted to me for adjudication is that the Complainant was unfairly dismissed. The specific complaint reference CA-00013421-001 is that the Complainant seeks adjudication under Section 8 of the Unfair Dismissals Act 1977. By letter to the Workplace Relations Commission dated 13th April 2018, and subsequently at the hearing on 17th April 2018, the Complainant’s solicitor sought “an extension of time under Section 41 (as at the 2015 Act) to include an amendment to the claim which are discrimination under the Employment Equality Act”. That letter further appears to state a case for the complaint to be considered valid under the Unfair Dismissals Act 1977 by referring to the Job bridge scheme ending on 29th July 2016, “where our client continued her employment …. and as such should be considered to qualify by having 11 months and 8 days service with the Respondent from the date of cessation of her Job bridge internship”. Taking into account that the Complainant’s employment ceased on 7th August 2017, the service alluded to was presumably meant to read 12 months and 8 days. I therefore will address in the first instance whether the Complainant had the requisite continuous service to ground a claim under the Unfair Dismissals Act 1977.

Section 2 (1) of the Unfair Dismissals Act 1977 provides:

“This Act shall not apply in relation to any of the following persons:

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 and whose dismissal does not result wholly or mainly from the matters referred to in section 6 (f) of this Act”.Service is a period during which an employee is employed by an employer. Continuous service is a period of unbroken service with an employer by an employee. I note that the Complainant was placed on a Job bridge internship from November 2015 until 29th July 2016. It is clear from Section 16 of the Social Welfare and Pensions Act 2011 that individuals on Job bridge internships are not employees. Section 16 states:

In relation to the Complainant seeking to amend the complaint to claim discrimination based on Section 74 (2) of the Employment Equality Acts 1998 and 2004, I find that this is an entirely different claim to that as cited above CA-00013421-001. I note that in the letter dated 16th April 2018 from the Complainant’s solicitor, confirmation of the “discrimination claimed is based on Section 74(2) in respect of victimisation under Employment Equality Act..” There has been no reference to any of the nine grounds in the Act. I do not accept that Section 74(2) is a “stand alone” provision which may not be linked to any of the grounds in the Act. The Complainant was given an opportunity to make supplemental submissions which were not received by either the dates originally outlined or at all. As I find that the complaint properly before me and presented to me for adjudication was that of unfair dismissal under the Unfair Dismissals Act 1977, and that the sought complaint is an entirely different one, I decline jurisdiction in the matter.
“A person who is engaged by another person to carry out work or perform any duty or service pursuant to a placement under the National Internship Scheme shall, for the purposes of any enactment or rule of law (other than the Tax Acts and the Safety, Health and Welfare at Work Act 2005), be deemed not to be an employee of the other person or to carry out such work or perform such duties pursuant to a contract of service”. The Complainant commenced on a fixed term contract with the Respondent on 8th August 2016 and her employment ended on 7th July 2017. I find therefore that the Complainant did not have one year’s continuous service to qualify for a complaint under the Unfair Dismissals Act 1977, and I decline jurisdiction.
Section 4 of the Act (relating to Apprenticeship) and Section 6 (f) of the Act (relation to pregnancy) do not apply in the Complainant’s case.

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.

The Complainant does not have the requisite one year’s continuous service to qualify for submitting a complaint under the Acts and I decline jurisdiction in the matter.

The Complainant’s attempt to amend her complaint to one of discrimination under the Employment Equality Act 1998 is not valid as that complaint is an entirely different complaint and I decline jurisdiction in the matter.

Dated: 21 November 2018

Workplace Relations Commission Adjudication Officer: Gaye Cunningham