Complainant

Respondent

Parties

Carina  Aughey

Coole Dental Centre

Representatives

Fiona Egan Peninsula Group Limited

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-00038688-001

13/07/2020

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

Both the witness for the respondent and the complainant gave evidence under affirmation.

The complainant submitted that she was employed as a Dental Nurse by the respondent since 17 September 2018.  The complainant also confirmed that she resigned from her position in January 2020.  The complainant submitted that approached the respondent seeking to work on a one or two day a week basis at the end of February 2020.

The complainant submitted that she worked for the respondent on 12 and 13 March but then the Covid Lockdown came, and she did not work for the complainant.  The complainant submitted that in response to queries from the respondent as to when she would be able to work again she indicated on three occasions (May 2020, June 2020 and July 2020) that she didn’t know as she was not able to get childcare.  On the final occasion she indicated that she would know more and perhaps be able to start from 27 August 2020.  The complainant indicated that the respondent said that he would have to get someone else as he had a business to run.

The complainant submitted that she was never informed that she was let go and accordingly was unfairly dismissed.

The complainant submitted that she was at a financial loss of €160 and mitigated her losses by contacting the respondent to try to get a job indicating to him that she would be available to work from 27 July 2020.

Preliminary issue

The respondent submitted that as the complainant had resigned she did not have the requisite service to pursue a complaint under the Unfair Dismissal Acts.

Substantive case

The respondent submitted that it made numerous attempts to ascertain from the complaint when she would be available to work but was repeatedly told that she was not available.  The respondent submitted that it was due to issue the complainants new contract when the Covid Lockdown was imposed and accordingly, no contract was issued as the complainant did not return to work with the complainant.

The respondent submitted that it contacted the complainant on 15 May to seek her return date but was informed that she would not be able to return to work.  It made further contact with the complainant on 17 June and was given a similar reply. The respondent submitted that at the beginning of July 2020 it contacted the complainant seeking her return date and giving her a week to respond.  In the alternative it would proceed to fill the vacant position.  The respondent submitted that the complainant did not reply within the timeframe and it proceeded to make arrangements to employ a second dental nurse.

The respondent submitted that the complainant subsequently contacted it to inform it that she may be available to start on 27 August.  Subsequent to that the respondent confirmed that the complainant contacted it again to clarify that she may be available from 27 July.

The respondent submitted that no unfair dismissal took place as the complaint did not make herself available to work

Section 2 of the Unfair Dismissal Act states that

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,

The complainant was employed by the respondent from 17 September 2018 but confirmed having resigned in January 2020.  The complainant confirmed that about six weeks later she sought a part-time position with the respondent and confirmed that it was under different terms and conditions.

Arising from the foregoing, I conclude that the complainant does not have the requisite service to rely upon the protection of the Unfair Dismissals Act, 1977 – 2015.

My decision is that the complainant does not have the required length of service to avail of the protections of the Unfair Dismissals Acts, 1977 – 2015.

Unfair Dismissals Act, lack of service.