Complainant

Respondent

Anonymised Parties

A Sales Assistant

A Retailer

Representatives

Sarah Faulkner Arthur Cox

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-00029504-001

08/07/2019

The Complainant is a demonstrator who was retained on a contract with the Respondent on 18th February 2004 for 14 hours per week.

The Complainant is employed with the Respondent since 2004. She did not receive any benefits. The Respondent only commenced paying her holiday pay in 2013.

In 2014 the Respondent produced 4 different contracts of employment for her to sign, but they would not recognise her 10 year’s service since 2004. Her contract said she was paid on receipt of invoices but she never prepared any invoices. She was paid on the basis of hours worked. The Complainant did not agree to sign the contracts of employment offered to her.

On 23rd December 2014 she became ill and did not return to work. She was medically certified sick. She was requested to attend a disciplinary hearing in January 2015. When she submitted her sick-certificates to the Respondent these were returned to her due to her status as self-employed.

She was in discussion with the company in 2014. The Respondent pressurised her to accept a new contract by 18th March 2015 and if not she would be dismissed and re-engaged. The Complainant retained a solicitor in March 2015 to represent her with the Respondent.

She then submitted an application to Scope for recognition of her status as employee. Scope found she was retained under a contract of service from 2004. The outcome was received in July 2017, the decision was appealed and upheld in February 2019.

On 30th August 2018 she received a letter from the company in relation to her personal data, which referred to the termination of her services in 2014. This was the first time she received any notification of her dismissal. On 8th May 2019 the Complainant submitted a grievance to the Respondent who refused to deal with the grievance. She complains that she has been unfairly dismissed.

The complaint of unfair dismissal was received by the Workplace Relations Commission on 8th July 2019.

The Respondent says the Complainant’s complaint is long out of time. She has not provided any services to the company since 21st December 2014. The letter received by the Complainant dated 30th August 2018 records that fact that the Complainant has not provided any services to the Respondent since 21st December 2014 and deals with the Respondent’s data protection obligations. This letter triggered the complaint.

In 2014 the Respondent introduced new demonstrators who were employed on contracts of employment and not as contractors. The Respondent entered into correspondence and negotiations with the Complainant’s solicitor in 2015. The Complainant referred a complaint to Scope in 2016. The Complainant did not enter into any contract of employment with the Respondent. The Respondent did not terminate the engagement as their view is the Complainant is a contractor.

The Complainant sought to submit sick-certificates to the Respondent which were refused and she was told not to submit sick-certificates.

Scope’s decision relates to the Complainant’s employment with the Respondent from 18th February 2004 to 21st December 2014 only. The Complainant admits in an email dated 24th July 2019 that this was an inordinate length of time to lodge an unfair dismissal claim and she wanted to wait until the outcome of the Scope appeal.

The complaint is outside the statutory time-limits and any extension thereto. The Claimant has been represented by a solicitor since 2015 and could have submitted a complaint at an earlier juncture. The purpose of the statutory time-limits is to prevent undue prejudice to a Respondent. All of the relevant personnel employed by the Respondent in 2014 are no longer employed and would be extremely prejudiced if required to defend this claim.

If the Complainant thought she was dismissed in August 2018 why did she not lodge her complaint of dismissal within 6 months. There is no reason for the delay in lodging her claim and no grounds to establish reasonable cause for an extension of time to allow the complaint to proceed.

I have considered carefully the submissions of the parties.

The Complainant’s complaint of unfair dismissal was received by the Workplace Relations Commission on 8th July 2019. The Complainant says her date of dismissal was 30th August 2018. She has produced a letter from the Respondent dated 30th August 2018 which states that her engagement with the company ended in December 2014. Following a data audit her personal data has been deleted save any materials required for tax or other statutory purposes.

The Complainant has not provided any services to the Respondent since 21 December 2014. Her employment status was in dispute and she did not sign the contracts of employment offered by the Respondent in 2014. She ceased working on 21st December 2014 and went on sick-leave on 23rd December 2014. The medical certificates subsequently submitted by her were refused by the Respondent.

The Scope decision of a deciding officer under S300 of the Social Welfare Consolidation Act 2005 dated 17th July 2017 was upheld on appeal on 18th February 2019 and found the Complainant is insurable for all benefits and pensions at PRSI Class A or Class J depending on reckonable earnings from 18th February 2004 to 21st December 2014.

The Respondent disputes the Complainant’s date of dismissal and say the Complainant’s engagement terminated on 21st December 2014, and the Workplace Relations Commission has no jurisdiction to hear the complaint.

S41 of the Workplace Relations Act 2015 provides;

(6) Subject to subsection (8) an Adjudication Officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of contravention to which the complaint relates…..

(8) An Adjudication Officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7)( but not later than 6 months after such expiration)as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The Complainant claims that her date of dismissal is 30th August 2018. She has not provided any service to the Respondent since 21st December 2014. The Complainant was medically certified due to illness from 23rd December 2014. The Complainant has given evidence that her medical certificates were not accepted by the Respondent who returned these to her, saying they are not her employer. Notwithstanding her medical illness, she appointed a solicitor to represent her in discussions with the Respondent in March 2015 and received legal advice. She subsequently submitted an appeal in relation to her employment status to Scope in 2016, and her complaint of unfair dismissal to the Workplace Relations Commission while medically certified ill.

It is evident the employment status of the Complainant was a matter of some dispute between the parties from 2014 onwards. The Complainant did not provide any services to the Respondent after 21st December 2014. She was informed her engagement would be terminated in March 2015 if she did not accept a contract of employment. She was legally advised. I find the applicable time period for making a complaint of unfair dismissal by the Complainant commenced on 22nd December 2014 and this has long expired.

The complaint is out of time and accordingly I find the Complainant has not been unfairly dismissed.

The complaint is statute-barred. The Complainant has not been unfairly dismissed.

Statute barred, complaint out of time, Complainant legally advised,