UDD1947

This matter comes before the Court as an appeal by Eimear Stynes (the Appellant) of a decision made by an Adjudication Officer in her complaint made under the Unfair Dismissals Act, 1977 (the Act) against her former employer, BDO (the Respondent).

The Appellant was employed by the Respondent from 4^thSeptember 2017 until her employment terminated on 17^thAugust 2018. The decision of the Adjudication Officer was made on 5^thFebruary 2019. The within appeal was received by the Court on 19^thMarch 2019.

The Respondent submitted as a preliminary issue that the Appellant had not, at the date of termination of her employment, accumulated 12 months service as required by the Act at Section 2(1). The Respondent submitted that in those circumstances the Court had no jurisdiction to hear the within appeal.

A preliminary issue also arose in that the Court received the within appeal on 18^thMarch 2019 which was the 43^rdday after the making of the decision by the Adjudication Officer.

The Court notified both parties in advance that its hearing would be concerned with the preliminary issues only on the basis that the Court’s decision in respect of either matter had the potential to dispose of the entire matter.

First preliminary matter

The Act at Section 2(1)(a) provides as follows:

• 2 (1) Except in so far as any provision of this Act otherwise provides 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,

Summary position of the Appellant on the first preliminary matter.

The Appellant submitted that the Court should consider the fact that the Appellant alleged bullying. She also submitted that the Court should consider that the fact that the Appellant alleged constructive dismissal was significant. She also submitted that the Appellant wanted to take two weeks holidays at the time of her dismissal and that, had she done so, she would have had the requisite service to bring her within the protections of the Act

Summary position of the Respondent on the first preliminary matter

The Respondent submitted that the Court, having regard to the Act at Section 2(1)(a), had no jurisdiction to hear the within appeal as the Appellant accepted that, at the date of termination of her employment, she had been employed by the Respondent for 50 weeks only. The Respondent submitted that holiday entitlement outstanding at the date of termination cannot be taken as service within the meaning of the Act. The Respondent in this regard asked the Court to consider the decision of the Employment Appeals Tribunal in Maher v B&I Line [UD271/98] and Twomey v Office Supplies Limited [UD864/1994].

Discussion and conclusions.

The Court has given careful consideration to the written and oral submissions of the parties on this preliminary point.

The Court draws its jurisdiction from the Act. The Act makes clear that, in order to enjoy the protection of the Act, the Appellant must meet the service requirement set out in the Act unless a provision of that Act exempts her from that requirement. The Appellant has not contended that any provision of the Act removes from her the statutory requirement to have acquired 12 months service in order that the protection of the Act would apply to her.

The Appellant has submitted that she would have wished to take holidays for two weeks at the time of termination of her employment. In the event, she did not take holidays at that time. The Act at Section 2(4) sets out that the First Schedule to the Minimum Notice and Terms of Employment Act, 1973, (the Act of 1973) as amended by section 20 of the Act, shall apply for the purpose of ascertaining for the purposes of this Act the period of service of an employee and whether that service has been continuous. The Act of 1973 makes no provision for calculation of untaken holidays as service for the purposes of the Act. In addition, the Employment Appeals Tribunal in Maher v B&I Line [UD271/1998] has addressed this matter.

The Court finds that the Appellant, at the date of termination of her employment, had accumulated less that the 12 months service required by the Act at Section 2(1)(a). The Court consequently finds that she does not have locus standi to maintain the within appeal.

The Court also finds that her contentions as regards an allegation of constructive dismissal and an allegation of bullying cannot overcome the statutory barrier to the pursuit of her appeal.

Having reached this conclusion the Court finds that it is not necessary to consider the issues arising in the second preliminary matter before the Court.

Determination

The Appellant, having less that 12 months service at the date of termination of her employment, lacks the locus standi to pursue the within appeal. The appeal fails and the decision of the Adjudication Officer is affirmed.

Signed on behalf of the Labour Court



Kevin Foley
TH______________________
19 August 2019Chairman



NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.