ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014703
Parties:
| Complainant | Respondent |
Anonymised Parties | A HealthCare Worker | A Nursing Home |
Representatives | Self Represented | Tom O Regan Solicitor |
Complaint(s):
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-00019214-001 | 16/05/2018 |
Date of Adjudication Hearing:03/09/2018
Workplace Relations Commission Adjudication Officer:Peter O'Brien
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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).
Background:
The Complainant was alleging he was unfairly dismissed. |
Summary of Complainant’s Case:
The Complainant stated he worked from January 26th 2016 to November 28th 2017. The Complainant stated his work permit expired in 2016. The Complainant stated he was in continuous employment since and had to return home to India for a period due to illness for a few months and he submitted some medical certificates to the Respondent during his absence. The Complainant stated he was dismissed after a meeting with his employer on November 28th 2017 for no particular reason. |
Summary of Respondent’s Case:
The Respondent stated that the Complainant did not have 12 months continuous service and under section 2 (a) of the Act the Adjudicator did not have jurisdiction in the claim. The Complainant had been employed from January 26th 2016 to June 18th 2016 when his first term of employment ceased due to the Complainant going sick and his work permit expiring. In February 2017 the Complainant applied for a new position and was interviewed and hired on a new contract of employment commencing on February 27th 2017. The Complainant therefore had seven months where he was not employed by the Respondent. The Complainant attended Induction Training between February 21st and 27th 2017. The Complainants application form given to the Respondent for the second position showed his employment terminating with the Respondent in June 2016. The Complainat began a term of sick leave in April 2017 and was advised this was a concern by the Respondent and would affect his opportunity for permanency. This was in addition to two further periods of sick leave prior to that date. The Complainant completed a probationary performance assessment in November 2017 where his employment was terminated in accordance with a clause in his contract “probationary period” . The Complainant commenced employment elsewhere in January 2018. |
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.
Section 2 (A) of the Act states that the Act will not apply to “An employee who is dismissed, who at the date of dismissal, had less than one years continuous service with the employer”.. The Complainant did not prove that his employment was continuous from January 26th 2016 to November 28th 2017 and all the evidence of a new contract, induction training, his own cv stating his first period of employment ended in June 2016 shows that the Complainant commenced employment on February 27th 2017 and he had only six months continuous service when he was dismissed and therefore he does not have 12 months continuous service to comply with section 2 (A) of the Act and his claim fails accordingly. |
Dated: 19th September, 2018
Workplace Relations Commission Adjudication Officer:Peter O'Brien
Key Words:
Unfair Dismissal |