FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : VF FOODS LTD (REPRESENTED BY KEVIN D'ARCY B.L., INSTRUCTED BY O'REGAN LITTLE SOLICITORS) - AND - DAVID O' CONNOR (REPRESENTED BY SHRC LIMITED) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer Decision No ADJ-00013749CA-00018054-001.
BACKGROUND:
2. The Worker appealed the Decision of an Adjudication Officer to the Labour Court on the 27th November 2018, under Section 8A of the Unfair Dismissal Acts, 1977 to 2015. A Labour Court hearing took place on 29th October 2019. The following is the determination of the Court:-
DETERMINATION:
This is an appeal by Mr David O’Connor against the Decision of an Adjudication Officer ADJ-00013749, CA-00018054-001 under the Unfair Dismissals Acts, 1977 - 2015 (the Acts) against his former employer, VF Foods Limited alleging that he was unfairly dismissed.
In this Determination the parties are referred to as they were at first instance, hence Mr David O’Connor is referred to as ‘the Complainant’ and VF Foods Limited is referred to as ‘the Respondent’.
In a Decision dated 24th October 2018 the Adjudication Officer found that the Complainant had less than one year’s service and therefore she held that she had no jurisdiction to hear his complaint.
The Complainant appealed the Adjudication Officer Decision to this Court on 27th November 2018.
Background
The Complainant was employed as a Financial Controller with the Respondent from 13th February 2017 until 22nd January 2018 when he was informed that his employment was ceasing. On that day he was given notice and paid until 26th January 2018.
Preliminary Issue Re Complainant’s Continuous Service
As a preliminary issue, the Respondent submitted that the Complainant did not have the requisite continuous service of one year to maintain his complaint under the Act.
Both parties were on notice that the preliminary issue needed to be addressed before the Court could consider whether or not it was necessary to hear the substantive claim. The Court informed both parties that the hearing would be concerned with the preliminary issues in the first instance on the basis that the Court’s decision had the potential to dispose of the entire case. Both parties agreed to proceed on that basis.
The Law
Section 2(1) of the Acts states as follows:-
- ‘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 1 defines “date of dismissal” :-
- (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,
- (i) the earliest date that would be in compliance with the provisions of the contract of employment,
Summary of the Complainant’s Case
Mr Conor Hannaway, SHRC Limited, on behalf of the Complainant submitted that the Complainant was entitled to four weeks’ notice, in which case he submitted that the Complainant would have the requisite service under the Acts. He accepted that the Complainant did not receive a written contract of employment and accordingly did not have written terms specifying his notice entitlement. However, he submitted that it was an implied term of the Complainant’s contract that he should be entitled to four weeks’ notice on the termination of his employment.
Summary of the Respondent’s Position
Mr Kevin D’Arcy, B.L. instructed by O’Regan Little Solicitors, on behalf of the Respondent disputed that there was any implied term to suggest that he was entitled to a longer period of notice than his statutory notice period and accordingly held that he was not covered by the Acts.
Complainant’s Claim for notice under the Payment Of Wages Act 1991
In a separate claim under the Payment of Wages Act 1991, in Determination PWD1930 the Court found that no evidence had been submitted to support the Complainant’s contention that there was an implied term of his contract that he was entitled to four weeks’ notice and accordingly held that he was entitled to one week’s notice in accordance with his statutory entitlement under the Minimum Notice and Terms of Employment Act, 1973.
Court Findings on the Preliminary Issue
Having considered the submission with regard to whether or not the Complainant has sufficient continuous service to maintain a claim under the Act, the Court concludes that his employment commenced on 13th February 2017 and the date of dismissal for the purposes of the Acts was 26th January 2018. Therefore, the Court finds that the Complainant had less than one year’s continuous service with the Respondent who dismissed him. Consequently, by operation of the Acts at Section 2(1), the Complainant cannot maintain a complaint under the Acts.
Determination
The Court determines that the Complainant does not have the requisite service to maintain a complaint under the Acts. The appeal fails and the Decision of the Adjudication Officer is affirmed.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
FMc______________________
4th November 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Fiona McCarthy, Court Secretary.