ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014223
Parties:
| Complainant | Respondent |
Anonymised Parties | A Sales Assistant | A Canoe Company |
Representatives | Appeared in Person | John Tait, Tait & Co Solicitors |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00018557-001 | 17/04/2018 |
Date of Adjudication Hearing: 27/08/2018
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
This is a claim for Unfair Dismissal which was opposed by the Respondent. The Complainant self-represented and the Respondent was represented by John Tait, Solicitor. Written submissions were advanced by the Complainant. |
Summary of Respondents ’s Case:
The Respondent was represented by the Company Solicitor who told the hearing that the Company Principal Mr B was unavailable to the hearing. He had sought a postponement which had been refused. The Respondent disputed that an Unfair Dismissal had occurred in the case and further countered that the Complainant did not possess the 12-month service to ground a complaint. The Solicitor gave an outline of the Respondent position. He summarise that the Complainant had been made redundant from Company A on 18 January 2017 and re-employed on 27 February 2017 by the Company B. These were to be considered two separate periods of employment. The Complainant had accepted the Redundancy and following a six-week gap in employment started afresh at Company B on a fixed term 12-month duration contract. The Complainant was legally advised during this period. In December 2017 the company communicated that the contract would not be renewed and official notice followed on 25 January and the complainant was paid in full to the end of his contract, 27 February 2018. He received good testaments to his contribution to the company. |
Summary of Complainant’s Case:
The Complainant outlined that he had worked as a Sales Assistant from 29 June 2012 until 23 February 2018. Initially this was for Company A until his employment was terminated by way of Redundancy on January 20, 2017. He commenced work with Company B by way of a Fixed Term Contract on 27 February 2017.He worked a 15-hour week for a nett pay of €216.41. The Complainant presented copies of both contracts of employment. The Complainant submitted that it was necessary to set the scene for the present claim by reflecting to his termination of employment by Company A in mid-January 2017 as this came with a rider that “the new owner may choose to retain my services “. At that time, the Complainant submitted that he raised issues under Transfer of Undertakings Regulations (TUPE) with Company B and was legally represented. He was aware that one of the employees had been retained at the new company and allowed some time to maximise the potential for his re-employment at Company B. Another worker had re-located to Malta. This resulted in a further contract of employment at Company B of 1-year duration with variations on lunch breaks which commenced on 27 February 2018. The Complainant did not sign the contract but commenced employment hoping to resolve the variations he had identified in both contracts. The Complainant stated that he assumed that he was protected by the TUPE Regulations and that he had got his job back because of raising issues under TUPE. The Complainant submitted that he retained the Redundancy payment of € 3,569.16 made by Company A as he was owed time and annual leave. On 22 December 2017 , the Complainant was informed that his contract would not be renewed due to trading difficulties .The Complainant took issue with this news as he loved his work, put everything into it and felt a residual back problem and consequent physical restrictions had ruled him out of a future with the company .He contended that another fixed term worker had been kept on despite his start date postdating the complainants .He also contended that Company B had gone on to replace him .He submitted that he had been unfairly dismissed when he was paid to the end of his contract and not permitted to return to work. He relied on the continuity in his employment between company B to ground the claim. The Complainant gave evidence of loss but was unavailable for work due to Care needs for his children. He was subsisting on Carers leave. Mr A, the complainants Manager gave evidence that he had remained on with Company B when Company A was sold. He was not involved in the complainant’s redundancy or in the formulation of the new contract issued in February 2017. He gave evidence that the complainant had resumed work. |
Findings and Conclusions:
I have considered the presentations of both parties in this case. It was unhelpful that the Respondent was not in attendance. I have considered the outline of the case as advanced by both parties. The Contracts: The Complainant submitted a contract of employment with Company A dated April 2015. This referred to an average weekly attendance of 24 hrs and contained a pay rate of €12.25 per hour. The Contract referenced an English based employer and the complainant submitted that he had issues with signing these contracts due to this British cross reference. The Contract submitted in relation to the Company B contract referred to a “fixed period 15 hours per week for 1-year duration “with an unspecified start date of February 2017 and referred to an hourly rate of €12.75 per hour. Both parties accepted that this contract commenced on February 27, 2017. On checking the calendar, I noted that this coincided with a Monday start. The crucial dispute in the case is that the complainant contends that his service was continuous to date of dismissal and protected by TUPE. The Respondents Solicitor disputed this and contended instead that there were two separate and distinct periods of employment, disturbed by redundancy and not restored by payment prior to the commencement of the 1-year contract on February 27, 2017. To advance a claim under the Unfair Dismissals Act, a complainant must be covered by having not less than one year’s continuous service with the employer who dismissed him. Section 2 (1) (a) of the Unfair Dismissals Act. I have taken time to examine the complainants service and the circumstances which prevailed in January 2017 when company A appears to have become a subsidiary of company B. The Complainants Manager gave evidence that he had been kept on in the transition, but did not introduce any documentation which allowed me to form a view that a Bone fide transfer had taken placed protected by TUPE. Instead, he referred to the complainant’s redundancy as illegal On the other hand, I was struck by the Complainants disregard for the Redundancy payment he received as he interpreted that it covered time owed and annual leave and did not reflect that it ended an employment relationship. The Redundancy Payments Act is not the same as the Organisation of Working Time Act and benefits which flow from both Acts are also different. I accept that the Complainant held a very strong conviction that he was wronged on the transition of business from Company A to Company B and he did intend to run his case to WRC under TUPE Regulations at that time. However, he was overtaken by the eventual offer of a start back at the company which he interpreted as continuous employment. However, he was not paid for the rest period between January and February. He was legally advised during that period and while I accept that a copy of the complainant’s legal advice found its way inadvertently into his submission, this advice is privileged and must be respected as such. Suffice to say, I am satisfied that the complainant could have been left in no doubt the nature of his re-start in February 2017. He did not action a grievance to dispute the contract variation of paid lunch breaks and crucially he did action an email on December 22, 2017 seeking some enlightenment on an extension of his employment. For me, at least, this proves that the complainant was fully aware of the nature of the contract he accepted but did not sign in February 2017. It was a 1-year contract from a different employer. The Date of Dismissal is outlined in Section 1(a) of the Act means: where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract of the Minimum Notice and Terms of Employment Act, 1973 the date on which that notice expires The contract which prevailed at the time of dismissal did not have the exclusion clause of section 2(2)(b) incorporated. Malahide Community School and Dawn Conaty UDD 1837 applied. However, the complainant had not sought to link the Company A contract with a continuity with Company B contract at any time before the hearing. He had not appealed his dismissal and he had not taken his previous course of action by enlisting legal representation to address this point. In that I found his actions to be inconsistent. I have found that ambiguities in both contracts and their clear variance from the Irish Statutory mandatory obligations in drafting terms and conditions of employment proved mis- leading to the complainant and caused him to mis-interpret the nature of the contract that issued in February 2017. This is regrettable. However, in all the circumstances I must find that the complainant was dismissed during the span of his one-year employment with the current Respondent. He has not demonstrated the continuity of service between Company A and Company B, that I would need to see to fulfil the service requirements of the Act against the present Respondent. I view that that the complainants service was disturbed by Redundancy with insufficient threads for me to establish a transfer of undertaking occurred. In these circumstances I find that the complainant has not satisfied the service requirements outlined in Section 2(1) (a) of the Act. I lack the jurisdiction to decide the case of Unfair Dismissal. |
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. I have found that the complainant lacked the necessary service requirements to ground his complaint. I find that his complaint for Unfair Dismissal cannot succeed . I would add a rider for the Respondent in the case to draft Statements of Terms and conditions of employment in accordance with Terms of Employment ( Information ) Act 1994 which arose from EU Directive 91/533/EEC. |
Dated: 2nd January 2019
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Unfair Dismissal |