ADJ-00012881

Complainant

Respondent

Anonymised Parties

A Doctor

A Hospital

Representatives

IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00016958-001

20/01/2018

The complainant claims that he was unfairly dismissed by the respondent after only a few weeks working with it.

The respondent claims that the complainant’s contract was terminated after it became clear that he would not be in a position to work his weekly contracted hours.

The respondent said that the complainant’s contract was terminated after it became clear that he would not be in a position to work his weekly contracted hours.

At the very outset of the hearing the respondent raised a preliminary matter and asked the Adjudicator to consider the jurisdiction issue regarding the complaint.

It said that the complainant has alleged on his Complaint Referral Form to the Workplace Relations Commission that his dismissal, after working a total of eleven shifts in December 2017, was a result of him “exercising [his] right to Force Majeure Leave”. The respondent said that at no stage did the complainant ever make any request to the respondent for Force Majeure Leave. It said that as the complainant fails to meet the one-year continuous requirement for a standard unfair dismissal complaint under Section 2(1) of the Act, the complaint should therefore fail.

The complainant claims that he was unfairly dismissed by the respondent after just a few weeks working there. He claims that he did not refuse to work his contracted hours. He wanted to work on a two-week-on-two-weeks-off pattern as other doctors were allowed to do.

When asked to comment on the preliminary matter raised by the respondent, in relation to my jurisdiction to hear the complaint, the complainant said he did not know what Force Majeure Leave was. He confirmed that his case was in relation to an unfair dismissal complaint against the respondent who chose to terminate his contract and it had nothing to do with an application for Force Majeure Leave and in accordance with the Parental Leave Act, 1998.

The Relevant Law

Unfair Dismissals Act 1977

1.— In this Act—

“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,

(c) where a contract of employment for a fixed term expires without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited, but was, at the time of its making, incapable of precise ascertainment), there is a cesser of the purpose, the date of the expiry or cesser;

[… ]

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

“employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative;

“employer”, in relation to an employee, means the person by whom the employee is (or, in a case where the employment has ceased, was) employed under a contract of employment and an individual in the service of a local authority for the purposes of the F3 [ Local Government Act 2001 (as amended by the Local Government Reform Act 2014) ], shall be deemed to be employed by the local authority;

[…]

Exclusions.

2.— (1) 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,

[…]

Unfair dismissal.

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

[…]

(dd) the exercise or proposed exercise by the employee of the right to parental leave, force majeure leave under and in accordance with the Parental Leave Act, 1998 , or carer’s leave under and in accordance with the Carer’s Leave Act, 2001”

Consideration

I am satisfied that the complainant has indicated on the Workplace Relations Commission’s Complaint Referral Form that he does not have the required one year’s service to take a complaint under the Unfair Dismissal Act, 1977. However, he has indicated that this case is in connection to Force Majeure Leave, where the required one year’s service is not a requirement.

When I opened the hearing, it became clear from the evidence presented that this was not the case. Accordingly, based on the evidence adduced during the hearing, I find that this complaint is not in connection to Force Majeure Leave under and in accordance with the Parental Leave Act, 1998.

As the complainant was employed by the respondent for less than one year, I am satisfied that the complainant does not meet the necessary criteria for bringing a case under the Unfair Dismissal Act, 1977. In particular, I note Section 2(1) of the Act said that “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” (my emphasis added).

I am satisfied that I do not have jurisdiction to hear the within claim.

I have concluded that this complaint is not in connection to Force Majeure Leave under and in accordance with the Parental Leave Act, 1998. The complainant has not established that he has at least one year’s continuous service as required to bring a complaint under the Unfair Dismissals Act, 1977. On this basis, I have no jurisdiction to adjudicate on the substantive issue of the complainant’s dismissal.

Unfair Dismissals Act 1977 - Force Majeure Leave - one year’s continuous service - no jurisdiction