Complainant

Respondent

Parties

Aleksandra  Mamcarz

Mylan (Rottapharm)

Complainant

Respondent

Anonymised Parties

Aleksandra  Mamcarz

Mylan (Rottapharm)

Representatives

  N/A

Michael Doyle A & L Goodbody Solicitors

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-00039746-001

10/09/2020

The Complainant commenced employment as a Production Operative with the Respondent with effect from 15th February 2010. Further to this, in October 2018, she commenced an apprenticeship as a Laboratory Technician and signed a new contract of employment. She alleged that she was very poorly treated by the Respondent during her apprenticeship and was left with no alternative but to terminate her employment on 20th May 2020.

The Complainant stated that she began the 3-year apprenticeship programme in 2018 and was issued with a new contract of employment. She stated that she encountered a number of difficulties during the apprenticeship period, namely that she did not receive a yearly bonus and was not given the opportunity to progress or learn any new skills. She also asserted that her manager did not reply to her emails and that the HR department informed her that they only dealt with disciplinary issues and not performance matters.

In addition, she claimed that the Respondent did not pay the fees for the second year and that she was obliged to pay these herself. She also stated that she encountered a number of IT issues which the Respondent did not help her with and highlighted that she was unable to continue to Level 7 of the programme.

She therefore believed that she had no alternative but to terminate her employment due to the behaviour of the Respondent and the way in which she was treated.

The Respondent stated that the Complainant made a request in 2018 to join an apprenticeship programme further to which she was informed that her contract of apprenticeship would be for a fixed term and that there was no guarantee of employment at the end of it.

This was an initial two-year Level 6 apprenticeship programme with the option to continue to Level 7 which the Complainant ultimately chose not to avail of. Contrary to the Complainant’s assertions, the Respondent asserted that it paid the agreed course fees for her, namely 50% of the total amount.

The Respondent stated that the Complainant was assigned a mentor for the apprenticeship programme and even though she was given adequate support by management made it known that the apprenticeship wasn’t for her because she wasn’t getting out of it what she hoped.

The Respondent also highlighted that the Complainant voluntarily resigned from her employment with effect from 20th May 2020, that she had given one month’s formal notice of doing so, that she had indicated an intention to do so a number of months in advance and that she timed her resignation until after she had completed her statutory apprenticeship with the Respondent on 19th May 2020.

It was also highlighted that the Respondent acted reasonably at all times, did not commit a repudiatory breach of the Complainant’s contract of employment, that the Complainant did not exhaust all internal grievance resolution mechanisms prior to her resignation and that the content of her resignation letter showed that it was an entirely voluntary decision on her behalf.

PRELIMINARY POINT

The Law

Section 4 of the Unfair Dismissals Acts states:

"Except in so far as any provision of this Act otherwise provides, this Act shall not apply in relation to the dismissal of a person who is or was employed under a statutory apprenticeship if the dismissal takes place within 6 months after the commencement of the apprenticeship or within 1 month after the completionof the apprenticeship."

Prior to hearing the substantive matter, the Respondent asserted that I did not have jurisdiction to hear the complaint given that the alleged dismissal fell within one month of “the completionof the apprenticeship”. Specifically, it was highlighted that the date on which that the Complainant completed her apprenticeship was the day on which she finished her exams, namely on 19th May 2020 and that the purported date of dismissal was 20th May 2020.

In considering this assertion however, I believe that it is not clear from reading the Act what constitutes the “completion” date of the apprenticeship and note that while it could indeed be the date of completion of the exams as the Respondent suggests, one could also argue that it might be the date on which the Complainant was informed of the outcome of her exams or indeed the date on which she received her formal qualification. While I have carefully reviewed the cases opened to me, I do not consider that any of these clarified this specific point to my satisfaction and must therefore make my decision on what I believe was the intent and spirit of the legislation in this regard.

In doing so, I note the Respondent’s assertion that the intention of the legislature was that there is a demarcation between the completion of the apprenticeship programme and the attainment of the qualification of an apprentice. It was highlighted that any other interpretation would mean that an employer, who dismisses an apprentice for not having attained their apprentice qualification (e.g. due to repeatedly failing their exams), could be subject to an unfair dismissal claim under the Acts, whereas no such risk would arise if the same employer dismissed an apprentice who attained their qualification but was not kept on.

I note the Respondent’s assertion that this would clearly be an anomalous position and believe that it was unlikely to have been the intention of the legislature when introducing a statutory exemption from the application of the Unfair Dismissals Acts to the dismissal of apprentices.

In addition, I note the Respondent’s assertion that section 4 of the Acts does not provide that it only applies where an employee has been dismissed within one month of successful completion of an apprenticeship and, most importantly, am persuaded by the suggestion that the definition of “completion” does not mean that an individual must successfully finish doing something in order for it to be complete (my emphasis), it is simply that the task they were undertaking has been finished, whether successfully or otherwise.

Accordingly, I am satisfied that the completion date of the apprenticeship in the instant case was 19th May 2020, the date on which the Complainant completed her exams, whether successfully or otherwise, and consequently find that, as the alleged date of the dismissal was 20th May 2020, namely within 1 month of the completion of the apprenticeship, I do not have jurisdiction to hear the complaint.

I do not have jurisdiction to hear the complaint for the reasons set out above

Apprenticeship; Completion date;