ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00020792

Parties:

	Complainant	Respondent
Anonymised Parties	A Revenue Protection Officer	A Public Transport Provider

Complaint(s):

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-00027384-001	29/03/2019

Date of Adjudication Hearing: 08/08/2019

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The complainant commenced employment as a Revenue Protection Officer with the respondent, a public transport provider, on 3rd November 2017. Her gross monthly pay was €2,581.38 and she worked 48 hours per week. A complaint was received by the WRC on 29th March 2019. The date of termination of employment was contested between the parties.

Preliminary Issue

Summary of Respondent’s Case:

At the outset of the hearing the respondent submitted that the WRC does not have jurisdiction to hear this complaint under the Act as the complainant did not have the requisite period of service with the respondent.

The respondent put forward that the complainant commenced employment with the respondent on 3rd November 2017 and that her employment with the respondent terminated on 31st October 2018 and as such she had, on the date of her dismissal, less than one year’s continuous service with the respondent. Therefore section 2(1)(a) of the Act does not apply to the complainant.

Summary of Complainant’s Case:

In response the complainant’s representative submitted that the respondent had issued a Fixed Term Contract of Employment to the complainant which commenced on 3rd November 2017. On 27th April 2018, following the successful completion of her probation period the complainant was issued with a letter which confirmed her status as a permanent employee with a Contract of Indefinite duration. On 23rd October 2018, the complainant received a letter from the respondent informing her that her employment with the respondent would end on 31st October 2018. The complainant believes this was an attempt by the respondent to get out of its liability under the Unfair Dismissals Act.

A few days later, following inquiries made by the complainant’s union on behalf of the complainant, a series of meetings took place between the parties culminating in a letter dated 27th November 2018 in which the respondent clarified that the complainant’s dismissal was due to performance related issues.

The complainant believes that the respondent only voiced real and final reasons during the appeals process when it issued the letter of 27th November 2018.

The complainant submits that both the Company Agreement and her Contract of Employment are unclear and ambiguous in relation to whether or not there was a stay on her dismissal pending the outcome of the appeal.

In summary, the complainant believes the WRC has jurisdiction to hear the case as the dismissal date is in reality the 27th November 2018, not 31st October 2018 and because the complainant had previously been issued with a contract of indefinite duration.

Findings and Conclusions:

I am satisfied that the complainant commenced employment with the respondent on 3rd November 2017 was dismissed on 31st October 2018.

I find the complainant was given the required notice of her termination.

The argument that an ambiguity exists in the Company Union Agreement regarding staying decisions until the appeals process is completed does not stand up to scrutiny. The Company Union Agreement states, “Pending the outcome of any appeal the decision taken by the Company will stand.” Nothing in the complainant’s Contract of Employment supports the existence of any ambiguity on this matter.

Under the terms of section 2 (1) (a) of the Unfair Dismissals Act, dismissed employees are precluded from bringing a claim if they have less than one year's continuous service with the employer who dismissed them.

As the complainant has less than one year's continuous service with the respondent the Unfair Dismissals Act 1977 does not apply.

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 decided that he complainant does not have the required one year of service with the respondent to bring a complaint under the Unfair Dismissals Act. I find therefore that I have no jurisdiction to adjudicate on this complaint.

Dated: 08/10/19

Workplace Relations Commission Adjudication Officer: Roger McGrath

Key Words:

Requisite service, fixed term contract, jurisdiction.