UDD1925

This is an appeal by Ms. Andrews, ‘the Complainant’, against a decision by an Adjudication Officer, (AO) of the Workplace Relations Commission, (WRC), that found against her claim that she had been dismissed unfairly by Mr. Byrne, ‘the Respondent’, from her job in the Respondent’s souvenir shop in Knock, Co. Mayo.

The start date of the Complainant’s employment by the Respondent is in dispute, see below. However, there is no dispute that the Complainant’s working hours were reduced on 7 March 2017 and that the Complainant filed complaints with the WRC on 12 March 2017 under the Terms of Employment, (Information), Act 1994 and the Protection of Employees, (Part-Time Work) Act 2001 that were referred for adjudication and further complaints regarding issues of pay and hours of work that required workplace inspections by the Inspectorate of the WRC.

On 21 March 2017, the Respondent notified the Complainant that she would not be required in work for a few weeks. The Complainant responded on 22 March 2017 requesting details of her reduced hours, stating her objection to the reduction and requesting an explanation. She states that she never received a response and that the next contact received by her was on 19 April 2017 when she was advised that she was due the sum of €961 as a result of the WRC inspections. She declined to collect the money and sought to speak to the WRC Inspector. She did so on 10 May 2017 and sought clarification from him as to whether she had been dismissed. The Inspector was unable to clarify this and the Complainant submitted her complaint of constructive dismissal on 10 May 2017.

The question of whether the Complainant had the requisite service to be covered under the Unfair Dismissal Act was raised as a preliminary issue at adjudication. The AO decided that as the complaint was lodged on 10 May 2017 and, notwithstanding confusion about her start date, as the Complainant had been employed prior to 10 May 2016 she was, therefore, covered by the Act.

The AO concluded that the Complainant did not advise the Respondent of her intention to resign prior to submitting a claim under the Act and had not been constructively dismissed. She appealed this decision to the Court.

Preliminary issue

The Court was presented with conflicting evidence regarding both the start date and the claimed end date of the Complainant’ employment. For the Court to hear the case, it must be established that the Complainant has the service required by the Act.

The relevant text of the Act reads as follows;

‘2-(1) This Act shall not apply to any of the following persons:

• 
  (a)an employee…who is dismissed, who at the date of his dismissal had less than one year’s continuous service with the employer who dismissed him…’

The P60 form from the Office of the Revenue Commissioners for 2016 shows a start date of 18 April 2016, which is the date that the Respondent states the Complainant commenced working for them. Unfortunately, the Respondent’s records are inadequate, so the Court was presented with the unsatisfactory situation of having to work out the likely start date based on these conflicting pieces of evidence. For the reasons outlined in the Department’s letter, the Court favours the Revenue information. This view is strengthened by the letter from the Complainant to the Respondent on 22 March 2017 that appears to confirm her view that she was employed by them since April 2016, though the decisive information is that from Revenue.

There is also dispute as to the end date of employment. If the AO’s position was to be accepted, the Complainant would be regarded as an employee until 10 May 2017. However, the Revenue P45 form shows an end date of 20 March 2017. The Respondent argued that the last pay date was earlier but, in fact, that is irrelevant if, as the Court determined, the start date was 18 April 2016, because the Complainant would have to be employed for one year from that date to be covered by the Act.

Therefore, on this preliminary point, the Court is not satisfied that it has been shown that the Complainant had the necessary service to be covered by the Act and her claim cannot be heard by the Court.

Determination on the preliminary issue

The Court varies the decision of the AO and determines that it does not have jurisdiction to hear the claim.

Signed on behalf of the Labour Court



Tom Geraghty
CC______________________
22 May 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.