ADJUDICATION OFFICER DECISION.

Adjudication Reference: ADJ-00019306

Parties:

	Complainant	Respondent
Anonymised Parties	A warehouse operative	An employment agency

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-00025185-001	22/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00025187-001	22/01/2019

Date of Adjudication Hearing: 29/03/2019

Workplace Relations Commission Adjudication Officer: Jim Dolan

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

Background:

The Complainant was employed as a warehouse operative by the Respondent from 05/05/2016 (date provided on complaint form) until 20/08/2018.

He was paid weekly; no details of wage rates were provided on the complaint form.

This complaint was received by the Workplace Relations Commission on 22/01/2019.

File reference ADJ – 00019306 contains two complaints: CA- 00025185 and CA – 00025187 – they are the same complaint submitted twice, there is only one complaint to be investigated and this has been referred under section 8 of the Unfair Dismissals Act, 1977.

Preliminary Argument.

Presented by Respondent.

The Respondent contends that the Complainant does not have the requisite service to lodge a claim under the Act. Section 2 of the Act outlines the following;

“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 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 (2)(f) of this Act”

It is accepted by the Respondent that the Complainant previously worked for the Respondent for three weeks in November – December 2016. The Complainant ceased working for the Respondent on 4th December 2016. A P45 was produced to this effect.

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Preliminary issue:

On investigation of the Respondent’s arguments in relation to the preliminary issue it was established that the Complainant had worked for the Respondent for a period of three weeks in November/December 2016 and had left. He was employed for the second time by the Respondent on 28th March 2018, this is not continuous employment.

At the end of the first period of employment the Complainant was issued with a P45 cessation document.

The Complainant when questioned did accept that he had worked for other employers between the two periods of employment.

The representative for the Respondent has correctly quoted section 2 (1)(b) of the Unfair Dismissals Act.

“2. – (1) This Act shall not apply in relation to any of the following persons

(b) An employee (other than a person referred to in section 4 of this Act) who is dismissed, who at the date of 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 (2)(f) of this Act”

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

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.

Given the fact that the Complainant does not have the requisite 12 months continuous service I do not have jurisdiction to hear the complaint under the Unfair Dismissals Act, 1977.

The complaint therefore fails.

Dated: 30th April 2019

Workplace Relations Commission Adjudication Officer: Jim Dolan

Key Words:

Unfair Dismissals Act; Lack of jurisdiction.