ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00018494
Parties:
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-00023770-001 | 04/12/2018 |
Date of Adjudication Hearing: 14/02/2019
Workplace Relations Commission Adjudication Officer: Michael McEntee
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).
The case opened with a Legal Submission from the Respondent concerning the admissibility of the claim on Complainant employment service grounds.
I considered this as a preliminary issue.
Background:
The case concerns the alleged Unfair Dismissal of a Service / Sales Executive by a Lift / Elevator Company. |
1: Summary of Respondent’s Case:
1:1 Admissibility of Claim. The Complainant was recruited and commenced Employment on the 7th June 2017 under a Contract of Employment that included a 12-month Probation clause. The Complainant was dismissed on the 30th May 2018 with one week’s notice expiring on the 6th June 2018. The Respondent pointed to Section 3(1) (a) of the Unfair Dismissal Act,1977 where it is stated that Dismissal during probation or training. 3 3.— (1) F28 [ Except in so far as any provision of this Act otherwise provides ] This Act shall not apply in relation to the dismissal of an employee during a period starting with the commencement of the employment when he is on probation or undergoing training— ( a) if his contract of employment is in writing, the duration of the probation or training is 1 year or less and is specified in the contract, or ( b) if his contract of employment was made before the commencement of this Act and was not in writing and the duration of the probation or training is 1 year or less.
The Respondent pointed to the Complainants’ Contract of Employment where a 12 months’ probation period (One Year) is clearly specified in writing. The Dismissal falls within the One Year time limit and is therefore outside the Applicable period for the Unfair Dismissals Act,1977.
1:2 Other Factors justifying the Dismissal The Respondent pointed to several Customer complaints and poor Sales figures. An evaluation had taken place with the Complainant on the 27th March 2018 where these issues had been discussed with him. In summary his performance was poor and of a low quality. Post the ending of Employment certain Social Media issues had been discovered, taking photographs of colleagues in the office etc, that did not reflect well on the Complainant.
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2: Summary of Complainant’s Case:
2:1 Opening Issue – Admissibility The Complainant strongly refuted and quoted extensive Legal precedent concerning the Admissibility Issue. He maintained that the strict one-year anniversary date is not the appropriate method of calculating One Years’ service. In the Oral Hearing reference was made to Section 2(1) (a) of the UD Act and the legal precedent interpretations of what the reference to “One year’s continuous service with the employer who dismissed him” has actually been taken to mean by the EAT and other Courts. It was the Complainant’s strong contention that he had the qualifying service for the Act. 2:2 Other Arguments in the Complainant’s case. In summary the Complainant argued that he had been denied all Rights under Natural Justice and SI 146 of 2000 -Statutory Code of Practice on Grievance and Disciplinary Procedures had been completely ignored. The Dismissal meeting on the 30th May 2018 had been completely Unfair and procedurally totally flawed. Accordingly, the claim for Unfair Dismissal is well founded |
3: Findings and Conclusions:
3:1 The Relevant Law The applicable law here is the Unfair Dismissals Act ,1977, supported by SI 146 of 2000 Statutory Code of Practice on Grievance and Disciplinary Procedures, the Rights of Natural Justice and a considerable body of precedent Decisions and Judgements. 3:2 The Opening Issue – Admissibility. It is necessary to look carefully at Section Three of the UD Act,1977 and I quote Dismissal during probation or training. 3 3.— (1) F28 [ Except in so far as any provision of this Act otherwise provides ] This Act shall not apply in relation to the dismissal of an employee during a period starting with the commencement of the employment when he is on probation or undergoing training— ( a) if his contract of employment is in writing, the duration of the probation or training is 1 year or less and is specified in the contract, or ( b) if his contract of employment was made before the commencement of this Act and was not in writing and the duration of the probation or training is 1 year or less.
In this case the facts are that 1. The Contract was in Writing 2. The duration of the Probation Period was set out to be of 12 months duration and this was stated clearly in the contract. There can be no ambiguity here regarding Probation Periods. The Legal Precedents, relied upon by the Complainant, refer to the Interpretation of Section 2(1) (a) of the Act and often rely on supporting precedent decisions under the Interpretation Acts of 2005 and 1937. The issue of the expiry of a specified 12-month probation period under Section 3 of the UD Act is rarely touched upon. In conclusion, in this case, the clear requirements of Section 3 of the UD Act have been satisfied the 12-month probation period was in writing and was “specified”. Accordingly, as the Dismissal took place within the 12-month probation period the claim under the Unfair Dismissal Act,1977 cannot be admitted.
The claim is Dismissed as not Well Founded.
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4: 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.
Act | Complaint/Dispute Reference No. | Summary Decision/ Please refer to Section Three above for Reasoning. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00023770-001 | Claim is Dismissed as Not Well Founded. As per Section 3 of the UD Act ,1977 the Complainant has not got the required Service to pursue a claim. |
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Dated: 16/04/19
Workplace Relations Commission Adjudication Officer: Michael McEntee
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