ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00025257
Parties:
| Complainant | Respondent |
Anonymised Parties | Driver | Furniture Distribution Company |
Representatives | Self represented | David O’Reilly |
Complaint:
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-00031993-001 | 04/11/2019 |
Date of Adjudication Hearing: 03/03/2020
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with 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:
The Complainant submitted a complaint that he was unfairly dismissed for having exercised his rights under the Minimum Wage Act 2000. |
Summary of Complainant’s Case:
The Complainant was employed by the Respondent from 27th May 2019 to 9th October 2019. He submitted a complaint to the WRC that he had been unfairly dismissed for exercising his right under the Minimum Wage legislation. He further contended that he had sustained an injury to his finger and was subsequently dismissed. |
Summary of Respondent’s Case:
The Respondent stated that as the Complainant had just short of five months service as an employee, he was not entitled to bring a complaint of unfair dismissal. Section 3 of the Act provides that the Act shall not apply in relation to the dismissal of an employee during a period starting with the commencement of the employment when he is on probation or undergoing training if the contract of employment is in writing, the duration of the probation or training is 1 year or less and is specified in the contract. The Complainant’s contract of employment containing a period of 6 months probation was advised to him in writing on 27th May 2019. Therefore under Section 3 of the Act, the Respondent has no case to answer. Further, Section 2 of the Act provides that the Act shall not apply in relation to 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 Complainant was employed on a contract of employment that include the provision of a six month probationary period. Had he been successful in that period, he would have been offered a permanent contract. The Complainant complained regularly to the manager and Director regarding his pay and hours. He refused to carry out his duties in a diligent manner and there were complaints from customers that he was unhelpful and rude. The Complainant was paid one week’s notice. The Respondent contends that it was legally and contractually within his rights to dismiss the Complainant. |
Findings and Conclusions:
In the complaint form, the Complainant stated that he was dismissed for having exercised his rights under the Minimum Wage Act 2000. Further, the Complainant submits that he was dismissed after he sustained an injury to his finger.
Section 2 of the Unfair Dismissals Act 1977 provides that the Act shall not apply to
“(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 Act, therefore does not apply unless the exception provided for in the National Minimum Wage Act 2000 applies.
Section 36 of the National Minimum Wage Act 2000 provides: “36 – (1) An employer shall not cause any action prejudicial to an employee for the employee having (a) exercised or having proposed to exercise a right under this Act, (b) in good faith opposed or proposed to oppose by lawful means and act which is unlawful under this Act, or (c) become, or in future will or might become, entitled in accordance with this Act to remuneration at an hourly rate of pay, or a particular percentage of that rate of pay. (2) Dismissal of an employee in contravention of subsection (1) shall be deemed to be an unfair dismissal of the employee within the meaning and for the purposes of section 6 (1) of the Unfair Dismissals Acts 1977 to 2007 (but without prejudice to sections 2 to 5 of the Unfair Dismissals Act 1977, except that it is not necessary for the employee to have at least one year’s continuous service with the employer..)” In a case where the employee has a complaint regarding minimum wage, the National Minimum Wage Act 2000 obliges the employee to request a statement of his or her average hourly rate of pay in respect of the relevant pay period before the employee refers a dispute to the WRC, or exercises his or her rights under the Act. The Complainant in this instant case has submitted no evidence to support his contention that he was dismissed for exercising his rights under the Minimum Wage Act 2000. I therefore conclude that the Complainant is not entitled to rely on the exception contained in the National Minimum Wage Act 2000 to prosecute his complaint of Unfair Dismissal. Further, the Complainant does not have the requisite one year’s continuous service to prosecute his complaint under the Unfair Dismissals Act 1977. I therefore find that his complaint is not well founded. |
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. The complaint is not well founded.
Dated: 17/08/2020
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Unfair dismissal, less than one year’s service. Exercise rights under Minimum Wage Act 2000. |