ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00027537

Parties:

Complaint(s):

Date of Adjudication Hearing:  26/04/2021

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 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

This matter was heard by way remote hearing pursuant to the Civil law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

No objections were raised to the remote hearing.

The parties were advised that arising from the Supreme Court judgement in the Zalewski v Adjudication Officer and WRC (2021) IESC 24 it is necessary for Adjudication Officers to implement certain procedural changes with immediate effect in relation to the conduct of hearings pending the introduction of the required legislative amendments to address the issues.

Therefore, I wish to confirm that the following procedural changes are applicable to the hearing of all complaints being heard now, even if they were lodged before the 6th April,21.

 In this regard, the parties should note that all adjudication hearings are now open to the public, other than where the investigation of the complaint does not amount to the administration of justice.

Furthermore, where a serious, direct conflict of evidence in the complaint before an adjudication officer emerges in the course of the proceedings, the Adjudication Officer will be obliged to adjourn the hearing to wait the require amendments of the Workplace Relations act 2015 and related enactments to grant the WRC the power to administer the \Oath or Affirmation.

No objections

Background

The claimant was employed from the 29th July 2019 until the 22nd January 2020. He was paid €2000 per month (€1923 net) working a 40-hour week

The claimant submitted that he was Unfair dismissed for exercising his right to Force Majeure Leave. Summary of Claimants position

The claimant stated that he was dismissed for exercising his right to Force Majeure. That on the 1st August 2019 he was 20 minutes late and he invoked Parental Leave act 1998   He stated that this was a Force Majeure event should be defined in the force majeure in the contract of employment,

The claimant submitted that as he was exercising his right under this legislation.

 The Claimant stated that he had an appeal hearing on the 9th March 2020 and he added that he got no response.

Summary of the Respondent position

The respondent submitted that claiming for a flat tyre does not fall within the remit of Force Majeure. The claimant did not have the required service to have his case dealt with under the Unfair Dismissal Act and the adjudicator had no jurisdiction in the matter. It was also submitted that the claimant had a case under the Industrial Relations Act 1969 before the Labour Court Recommendation No. LCR22396 on the same issue.

Findings

The complaint was received by the WRC on the 13th March 2020

I find that the claimant was employed from the 29th July 2019 until the 15th January 2020.

The requirement of one year’s continuous does not apply where the dismissal results from

“the exercise or proposed exercise by an employee of the right to parental leave or force Majeure under and in accordance with the Parental Leve Act 1998 &2006”

The claimant submitted that he had a “flat tyre” he claimed “Force Majeure” for the day.

Force majeure, sometimes, but erroneously, referred to as force majeure, is a common clause in contracts which essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as a war, strike, riot, crime, epidemic, sudden legal changes, or an event described by the legal term act of God, prevents one or both parties from fulfilling their obligations under the contract. In practice, most force majeure clauses do not excuse a party's non-performance entirely, but only suspend it for the duration of the force majeure.

I find that the claimant failed to provide evidence to support his complaint that he was dismissed by exercising his right to Force Majeure

I find that a “flat tyre” does not come within the definition required for Force Majeure.

Section 2 (1) This Act shall not apply in relation to any of the following persons;

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. I have decided that the complaint is not well founded and falls

Dated:   26th of July 2021

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

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