Complainant

Respondent

Parties

Maurice  Dowling

Actavo (Ireland) Limited

Representatives

 Feeney & Corcoran Solicitors. Mr Tiernan Lowey, BL

 Arthur Cox, Ms. Mairead McKenna, B.L.

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-00040340-001

09/10/2020

The complainant contends that he was unfairly dismissed.

The complainant commenced employment as a Global Director of Human Resources in the respondent’s engineering services company on 02/07/2019. His employment was terminated on the basis of an alleged redundancy on 28/07/2020.

His gross, monthly salary was €13,062.

He submitted his complaint to the WRC on 9/10/2020.

The Respondent submits that the complainant does not have the requisite one year’s continuous service as per section 2(1)(a) of the Acts. This preliminary point must be addressed in isolation from and in advance of the hearing.

The complainant commenced his employment on the 5 August 2019. His employment was terminated on 13 May 2020. The remaining two months and two weeks of his notice was paid. That notice period expired on the 28 July 2020. Taking either date, he does not have the requisite one year’s service.  While he signed a contract on the 2 July 2019, the contract clearly stated that “the appointment of the executive shall commence on the 5 August 2019”, he received no salary nor was any service required of him prior to the 5 August 2019.

The respondent relies on the definition of continuous service found in section 2(4) of the Unfair Dismissals Acts which requires that the period of service will conform to the provisions of section 1 of the First Schedule of the Minimum Notice and Terms of Employment Act. 1973.

The respondent rejects the concept that continuous service can include service accrued prior to the commencement of employment as to accept that could see an employee serving notice (and accruing service) with his current employer while simultaneously accruing service with his new employer prior to taking up employment with that employer. The respondent states that such an interpretation of the continuous service would present difficulties under a number of statutes.

The respondent requests the adjudicator to reject the complaint on this preliminary point of jurisdiction.

The complainant’s barrister requested a postponement of the hearing until after the statutory review enabling the taking of evidence under oath. The complainant’s barrister asks that the preliminary issue be addressed in the context of sworn evidence to be submitted by the complainant during the hearing of the substantive complaint and which the complainant can provide after the amendments to the Workplace Relations Act 2015 are enacted.

The complainant’s barrister maintains that the complainant has the requisite service to bring a complaint.

The complainant’s barrister stated that he will rely on the relevant legislative provisions, the relevant facts (and to be provided in oral evidence) and the relevant terms of the complainant’s contract of employment.

Relevant Legislation.

The complainant’s barrister directs the adjudicator’s attention to Section 1 of the Acts which defines an employee as one “who has entered into or works under (or where the employment has ended) works under a contract of employment”

 A literal interpretation of this provision means that the moment a complainant enters into a contract, the employee enters into the service of the employer and is legally bound by its terms.

The requirement to have a year’s continues service in order to bring a complaint of unfair dismissal requires that the complainant’s continuous service complies with the definition of continuous service set out in the First Schedule of the Minimum Notice and Terms of Employment Act. 1973. This schedule does not state that the service must be service in which you are performing tasks for the employer. The clock should run from the date on which he entered into the contract- 2 July 2019. The First Schedule does not differentiate between service from the date of entry into the contract vs commencement of tasks. Therefore, the complainant became an employee when he entered into a contract of service which occurred on or around the 2 July 2019. The contract stated that his ‘appointment ‘would commence on the 5 August 2019.

The complainant believed he would take up the appointment in July and gave his notice to his former employer on or around the 2 July who agreed to release him from the full notice period to which it was entitled under his previous contract of employment.  The complaint can give evidence that he made himself available to the respondent weeks before the 5 August 2019.

The complainant will give evidence that in the last week of July 2019 he was given strategy documents to read and was expected to commence work as a Global HR director before the formal date of appointment.

The complainant commenced employment on the 2 July 2019. One year and 26 days later on 28 July 2020, the respondent terminated the complainant’s employment citing redundancy due to Covid 19.

The complainant’s barrister referred me to the judgement of the then European Court of Justice- Sarkatzis Herrero v Instituto Madrileno de la Salud (2006) IRLR 298, Case C -294/04 which held in that case that continuity of service for seniority runs from the date on which the employee is hired rather than the date she is able to take up duties. He contends that the same principle applies in this instance and that the time when an employee takes on the duties of the role should not be the starting point for counting service, but rather the date of the appointment or the signing of the contract.

Concerning the substantive case, this was not a genuine redundancy. Further, there was no fair selection process applied and the circumstances leading to the complainant’s dismissal constituted a gross infringement of his right to fair procedure.

The complainant’s barrister asks the adjudicator to accept that the complainant’s employment commenced when he signed the contract of employment and ended on 28 July which gives him one year and twenty-six days and jurisdiction to have his complaint heard and to reject the respondent’s case that his employment commenced on 5 August 2019 and ended on 28 July 2020 which amounts to 11 months and 26 days.

I am obliged to adjudicate on whether or not the complainant has the requisite one year’s continuous service to bring a complaint of unfair dismissal.

Relevant Law.

Section 1 of the Acts defines an employee as one

 “who has entered into or works under (or where the employment has ended) works under a contract of employment”

Section 2(1)(a) excludes from the protection of the Acts an employee, who,

“at the date of his dismissal has less than one year’s continuous service with the employer who dismissed him”.

Continuous service is service as set out in section 2(4) of the Acts and is service which must comply with the provisions of the First Schedule of the Minimum Notice and Terms of Employment, Act 1973.

I have been asked to accept that the lack of an explicit reference to performing tasks for an employer in both section 1 of the Acts and the First Schedule of the Minimum Notice and Terms of Employment, Act 1973  permits me to reckon the period (from 2 July – 5 August), where the contract though signed, had yet to come into effect; it lay dormant. The contract states that the complainant will take up employment on the 5 August 2019. It is accepted that there was no salary paid to the complainant prior to that period. The respondent maintains that no service was required of the complainant before the 5 August. The complainant’s barrister submits that in the last week of July 2019, the complainant was required to read documents and familiarise himself with company policies which he did. In this way, he argued, the definition found in section 1 of the Acts can encompass such periods of service and allows me to reckon this period and thus bring the complainant’s service up to the requisite one year. Excluding such a period will leave the complainant one week short of one year’s service. To do so I would have to recognise the period when the respondent neither obliged him to perform tasks nor paid him any salary. I find it difficult to accept that providing company documents to a person whose appointment is imminent- a commonplace occurrence -constitutes computable service.

The First schedule of the Minimum Notice and Terms of Employment Act, 1973, Computation of Continuous Service, excludes service in which

“an employee is not normally expected to work for at least twenty-one hours” and it will not count in “computing a period of service”.

The reference is to an employee” not normally expected to work”. This clearly does not mean waiting to work until the contract takes effect.

Sections 9 -13 of the First Schedule set out the absences from employment which can or cannot be counted in computing a period of services. But all such absences are concerned with persons already in employment, performing tasks and stepping off the job temporarily, as opposed to waiting for their employment to commence.  So, for example absences due to sick leave, service in the Defence Forces, strikes (non- reckonable) are computed.

Section 5, of the complainant’s signed contract concerns Exclusivity of Service and stipulates that the complainant shall not during the course of his employment

 “directly or indirectly assist or be engaged, concerned or interested in or work for any other business, firm, company, concern enterprise or society…. Without the prior approval of the company”.

That clause would appear to preclude the reckoning of the period during which he was working his notice with his previous employer after having signed the contract on the 2 March 2019. The date when his notice expired with his previous employer was not provided.

The complainant’s barrister referred me to the judgement of the then European Court of Justice- Sarkatzis Herrero v Instituto Madrileno de la Salud (2006) IRLR 298, Case C -294/04 which held that continuity of service for seniority runs from the date on which the employee is hired rather than the date she is able to take up duties. He contends that the same principle applies in this instance and that the time when an employee takes on the duties of the role should not be the starting point for counting service, but rather the date of the appointment or the signing of the contract. But the circumstances of that case differ as that employee was already in the service of the employer, was appointed to a permanent position, but was unable to take up the position due to being on maternity leave. That case was decided under Directive 76/207/EEC, in favour of reckoning her seniority from the date of her appointment, holding that for the Spanish Government to preclude such service was in breach of the principle of equal treatment. But I am unable to identify an equivalent statutory protection for the period between the signing of a contract and the taking up of an appointment. Nor was I presented with any authority which would support the concept of service being computable from the date on which the contract was signed as opposed to the date when the contract came into effect.

Based on the definition of computable service found in the First Schedule, I am unable to accept that the period of 2 March– 5 August complies with the definition of computable service as set out in the  First Schedule of the Minimum Notice and Terms of Employment, Act 1973.

I find that I do not have jurisdiction to hear this complaint.

I find that I do not have jurisdiction to hear this complaint

Computable service for the purposes of the Unfair Dismissals Acts