Complainant

Respondent

Anonymised Parties

A Sales Assistant

A Convenience Store

Representatives

Tom Smyth & Associates

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-00031876-001

29/10/2019

The complainant claims she was unfairly dismissed and the respondent says she does not have the requisite service.

The respondent submits the complainant commenced employment with them as a sales assistant on 16 November 2018. She was given notice on 16 August 2019 and left their employment on 25 August 2019. Therefore, she does not have “one year’s continuous service” as required by section 2 of the Unfair Dismissals Act. Furthermore, they note she claims her dismissal was based on her trade union membership but deny that this was ever mentioned during her employment.

The complainant confirmed at the hearing that she does not have “one year’s continuous service” with the respondent. She did say on her complaint form that her dismissal was based on her trade union membership but confirmed at the hearing that this was a mistake and she was not a member of a trade union.

The Respondent submits that the Workplace Relations Commission does not have jurisdiction to hear this claim under the Unfair Dismissals Act as the Claimant does not have the required service as set out in section 2(1)(a) which states the Act shall not apply to;

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 and whose dismissal does not result wholly or mainly from the matters referred to in section 6 (2) (f) of this Act,

The complainant confirmed that she does not have “one year’s continuous service”. The Act sets out exceptions to this service requirement and states: “Section 2 (1) … shall not apply to a person … who is dismissed if the dismissal results wholly or mainly from one or more of the matters referred to in subsection (2) (a) of section 6.” 

And section 6 (2) states:

“the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)    The employee’s membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer to so engage,”

The complainant put down Trade Union Membership on her complaint form but said this was a mistake and confirmed trade union membership had nothing to do with her dismissal. She put forward no other reason why I should consider her claim.

I find the complainant does not have “one year’s continuous service” as required by the Act and she does not fall into any of the exceptions to this requirement.

I find the complainant does not have “one year’s continuous service” as required by the Act and she does not fall into any of the exceptions to this requirement and I therefore do not have jurisdiction to investigate the claim.

Unfair dismissal act – lack of service