Complainant

Respondent

Anonymised Parties

A Tax Trainee

A Financial Services Company

Representatives

Maire McEvoy, Human Resources Consultant

Colleen Clery, CC Solicitors

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-00022782-001

22/10/2018

The complainant joined the respondent’s company as a tax trainee on September 4th 2017.   She was employed on a fixed-term contract for three years. She said that she resigned on July 18th 2018 because of the conduct of her employer and she left four weeks later on August 17th. She completed 50 weeks of service. A preliminary issue therefore arises in respect of the complainant’s qualifying service under the Unfair Dismissals Act 1977 – 2015 (“the Act”).

Complainant’s Position

Making the case that the complainant completed one year of service, Ms McEvoy submitted that this is slightly different to normal unfair dismissal cases because the complainant resigned due to the conduct of her employer. She argued that the complainant’s service includes two weeks’ holidays that she had not taken when she left her job.

Respondent’s Position

For the respondent, Ms Clery said that the complainant resigned on July 18th 2018 and confirmed that her notice would expire on August 17th. She argued that the legislation is clear and provides for certain prescribed exceptions, none of which apply to the complainant’s circumstances. She referred to the High Court case of Nityendra Sharma and Udaiveer Saharan v Employment Appeals Tribunal and J&I Security Limited (notice party) [2010] 21 ELR 262. Here, the applicants had 11 months and six months’ service respectively at the date of their dismissals. For this reason, the Employment Appeals Tribunal found that it did not have jurisdiction to hear the complaints. In an appeal to the High Court, Mr Justice Hedigan affirmed the EAT’s decision and found that the appellants’ circumstances were not covered by the exceptions provided for at section 6 of the Unfair Dismissals Act.

The Legal Framework

Section 2(1) of the Unfair Dismissals Act provides that a dismissed employee is required to have completed one year of service :

“Except insofar 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.”

Section 4 refers to the dismissal of apprentices in the period of six months following completion of their training and is not relevant to this complaint.

Continuous service is defined at in section 1 of the First Schedule of the Minimum Notice and Terms of Employment Act 1973:

“The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by—

(a) the dismissal of the employee by his employer, or

(b) the employee voluntarily leaving his employment.”

Section 1 of the Unfair Dismissals act sets out the “date of dismissal” as:

“(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.”

Section 6 of the Unfair Dismissals Act sets out a number of exceptions to the requirement to complete one year of service before having a complaint of unfair dismissal adjudicated upon. These include:

Dismissal for trade union membership or activity;

Pregnancy-related dismissal;

Dismissal for exercising the right to adoptive leave, parental leave, force majeure leave or carer’s leave;

Dismissal for exercising rights under the Minimum Wage Act 2000;

Dismissal for having made a protected disclosure.

Findings

There is no dispute that the complainant left her job on August 17th 2018. On that date, she had not completed 52 weeks of service. In respect of holidays, it is settled law that holidays not taken at the date of dismissal, cannot be added on as service. In this respect, I note the findings of the EAT in Maher v B&I Line, UD 271/1978 and Twomey v Office Supplies Limited, UD 864/1994.   The complainant has not made out an argument that the termination of her employment was related to any of the exceptions set out under section 6 of the Act. For all these reasons, I have reached the conclusion that she has not completed the required one year of service to give her an entitlement to make a complaint under the Act.

I have concluded that the complainant has not established that she has one year of service required to bring a complaint under the Unfair Dismissals Act. On this basis, I have no jurisdiction to adjudicate on the substantive issue of her dismissal.

Unfair dismissal, length of service