Complainant

Respondent

Anonymised Parties

A Bar employee

A Food and Drinks Company

Representatives

In person

Peninsula Business Service Ireland Ltd

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-00024620-001

03/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00024620-002

03/01/2019

The complainant was employed as part of the respondents Bar Staff between 16th November 2018 and claims to have been unfairly dismissed on 14th December 2018. The complaint was submitted to the Workplace Relations Commission (WRC) on 3rd January 2019.

Note: CA-00024620-002 is a duplicate complaint. The decision on the complaint is addressed under CA-00024620-001.

The respondent raised a preliminary issue that the complainant does not have the required 52 weeks continuous service to bring a complaint under the Unfair Dismissals Act, 1977. The respondent contends that in 2016 the complainant was employed for 6 weeks in total, in Spring/Summer 2017 for 9 weeks and in November/December 2018 for approximately 5 weeks. The respondent outlined that the complainant received a P45 each time his employment ended and lived abroad in between periods of employment. The respondent stated that when the complainant returned to Ireland he would enquire if there was work available with the respondent and if work was available, he would be employed on a casual basis for short periods of time.

The complainant contends that he has the required service to bring a complaint on the basis that he has been employed by the respondent from November 2016 until December 2018 and that the nature of the work for which he was employed was mostly seasonal in nature with periods of lay-off in between periods of employment.

The Applicable Law

Section 2 of the Unfair Dismissals Act 1977 states as follows:

2(1) Except in so far as any provision of this Act otherwise provides 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,

Continuous Service

The First Schedule of the Minimum Notice and Terms of Employment Act, 1973 at parts 1 and 10 state as follows:

1. The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by—

(a) the dismissal of the employee by his employer, or

(b) the employee voluntarily leaving his employment.

10. If an employee is absent from his employment for not more than twenty-six weeks between consecutive periods of employment because of—

(a) a lay-off,

(b) sickness or injury, or

(c) by agreement with his employer,

such period shall count as a period of service.

I have considered the submissions of both parties to this complaint. Between 18th November 2016 and 14th December 2018, the complainant was employed for a total of 20 weeks spanning four periods of employment as follows:

18th November 2016 until 22nd December 2016. (6 weeks)

17th April 2017 until 2nd July 2017. (7 weeks)

24th August 2017 until 3rd September 2017 (2 weeks)

16th November 2018 until 14th December 2018 (5 weeks)

Having considered the complainant’s entire period of employment with the respondent, I am satisfied that the complainant was employed on a casual basis; when he was available for work and when the respondent had work available for him. On that basis and given the specific dates of the employment, I do not accept that the employment was seasonal as submitted by the complainant. Accordingly, I conclude that the complainant does not have one years’ continuous service and therefore the provisions of the Unfair Dismissals Act, 1977 do not apply to him.

Having considered the submissions of both parties, I find that the complainant does not have the requisite service to bring a complaint under the Act. Accordingly, the complaint is not well founded.

Unfair Dismissal, Requisite service