Complainant

Respondent

Parties

Margaret  Regan

Celtic Chocolates Limited

Representatives

  Margaret Regan

Philip Hedges

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-00036264-001

13/05/2020

The complainant was employed as a factory operative with the respondent company.  She worked a 37 hour week and was paid €9.80 per hour.  She claims she was unfairly dismissed.  The date of dismissal on the complaint form is shown as 06 April 2019 but the complainant later stated in a submission to the Workplace Relations Commission that she did not find out until August 2019 that she had been dismissed.  The complaint was received by the Workplace Relations Commission on 13 May 2020.

Preliminary Issue

The respondent strongly refutes the claim of unfair dismissal.

The respondent submits that the complainant did not have twelve months continuous employment with the respondent and therefore the Unfair Dismissals Act does not apply to her.  The complaint is unfounded.

Response to Complaint

The respondent is a small manufacturer of ‘free from’ chocolate and produces a range of products for the UK market.  The company employs a core number of employees (12) to service its year round product production.  In addition, each year the respondent bids to produce seasonal products for the Christmas and Easter seasons.  For the seasonal production the respondent recruits temporary seasonal employees for approximately 7 to 8 months each year.  The number of temporary seasonal employees and the period of their employment is entirely dependent on the volume of work in any year.

The complainant was recruited as a temporary seasonal employee.  Her first contract of employment commenced on 14 September 2017 and terminated on 23 March 2018.  Her second contract of employment commenced on 11 September 2018 and terminated on 05 April 2019.  The complainant was issued with a notice of termination on 27 March 2018.

The number of temporary employees required in 2017 and 2018 was five.  However, in 2019 the respondent only required two temporary employees, one of whom was a forklift operator.

In April 2019 the respondent terminated the contracts of three temporary employees, including the complainant.  The decision to terminate these contracts was made by the Operations / General Manager based solely on the completion of seasonal manufacturing requirements. 

The complainant refers to three work incidents, but these are not relevant.  The incidents did not warrant any formal disciplinary action and were dealt with by way of one-off cautions.  The contracts of three temporary employees, including the complainant, were terminated in April 2019 due solely to the completion of seasonal manufacturing.

The respondent is not aware of a letter of complaint from the complainant.

Conclusion

The respondent is a small family run business and all employees are much valued and treated with the respect they deserve.  The respondent endeavours to engage employees from the local area where ever possible.  It is against the respondent’s ethos to unfairly dismiss an employee.  The complainant’s contract was terminated in April 2019 due to the completion of our seasonal manufacturing.  The complainant was not unfairly dismissed.

The complainant did not have twelve months continuous employment with the respondent, therefore the Unfair Dismissals Act does not apply to her.  The complaint is unfounded.

Preliminary Issue

The complainant requested an extension of time for the investigation of her complaint.

The complainant’s complaint form was received by the Workplace Relations Commission on 13 May 2020.  The date of dismissal given on the complaint form was 06 April 2019.  The Workplace Relations Commission wrote to the complainant pointing out the time limits for the presentation of complaints and the possible of extension of time provided for in Section 8(2)(b) of the Unfair Dismissals Act, 1977 – 2015, for reasonable cause shown.  The complainant in response made a submission in February 2020 for an extension of time for the investigation of her complaint.  She stated that she had only been made aware that she had been unfairly dismissed in August 2019.  She then contacted the respondent, gave them ample opportunity to respond but they failed to reply to her.  At that point she decided to submit her complaint to the Workplace Relations Commission.  The complainant stated that her last contact with the respondent was in October 2019 and therefore she submitted her complaint is within the relevant timeframe.

Complaint

In her written submission the complainant stated she was laid off on 06 April 2019 along with one other employee.  She claims she was told the layoff would be for two months.  In July 2019 two people were taken on, one of whom was the other employee who had been laid-off in April 2019.

In her written submission the complainant stated she awaited a call from the respondent to be brought back to work, but she did not receive a call.  In August 2019 she made three phone calls to the respondent.  In the last phone call the complainant was made aware of three issues with her work, wearing jewellery, not washing her hands and dropping sweet wrappers on the floor.  The complainant claims these were the reasons she was not taken back into employment along with hearsay about her not wanting to return to work.  She stated she did not receive warnings, verbal or written about these three issues. The complainant claims that any hearsay about her not wanting to return to work was untrue and unfounded.

The complainant wrote to the respondent on 30 September 2019.  She explained that when she was laid-off in April 2019 she was told that the lay-off would be for two months.  She explained the content of her telephone calls in August 2019 with a company representative and she asked to have the matter investigated and resolved.  The letter was sent by registered post and she received confirmation from An Post regarding signed delivery on 02 October 2019.  The complainant did not receive a reply to her letter. 

On 04 December 2019 the complainant sent an e-mail to the respondent seeking a reply to her letter of 30 September 2019.  She stated in the e-mail that as it was now two months since she sent her letter asking for her complaint to be investigated she would give the respondent a further seven days to reply.  If she did not receive a reply she stated she would have no choice but to lodge a complaint with the Workplace Relations Commission.  The complainant did not receive a reply to her letter or her follow up e-mail.  She submitted her complaint to the Workplace Relations Commission on 13 May 2020.

Conclusion

The complainant claims she was laid-off work in April 2019.  Based on a conversation she had before leaving, she expected to be called back to work in about two months.  She was not recalled and did not realise she had been dismissed until she contacted the respondent in August 2019. 

The complainant wrote to and e-mailed the respondent in September and December 2019 seeking an investigation and resolution of her complaint.  The respondent did not reply to her letter or e-mail.

The complainant claims she was unfairly dismissed.  She seeks compensation in redress for her unfair dismissal.

CA-00036264-001

Complaint submitted under Section 8 of the Unfair Dismissals Act, 1977

Preliminary Issues

Continuous service

The respondent asserted the complainant did not have twelve months continuous employment and therefore the Unfair Dismissals Act did not apply to her.

There are several exclusions set out in the Unfair Dismissals Act.  Section 2(1) of the Act is as follows:

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 respondent provided me with copies of the complaint’s contracts of employment and letter of termination dated 27 March 2019. 

The first contract commenced on 14 September 2017.  It stated in the contract that the complainant was employed on a temporary contract and the expected duration of the contract was 8 months.  That contract was terminated on 23 March 2018. 

The complainant was employed on a second temporary contract commencing on 11 September 2018.   The termination letter issued on 27 March 2019 stated: “This is to notify you that your employment as a seasonal worker will cease on 5th of April 2019.  On behalf of the company I would like to thank you for your hard work and cooperation during your period of employment with us.”

The complainant’s last working day with the respondent was Friday 05 April 2019.

It is clear from the documents provided that the complainant had two separate periods of employment with the respondent.  The first period was a little over six months in duration.  The second contract did not commence until over five months after the first contract ended.  The second contract of employment was again for a little over six months.  The two periods of employment were not continuous. 

The complainant acknowledged she was a seasonal employee and she confirmed that she had received the letter dated 27 March 2019 terminating her employment.  She also confirmed that she did not apply for a job when vacancies were advertised in September 2019.  I found her to be honest and truthful and genuinely upset and disappointed that she had not been recalled in July/August 2019.   The complainant stated she was not aware of the requirement to have at least one year’s continuous service with her employer to make a complaint of unfair dismissal.

I find that the complainant did not have one year’s continuous service with the respondent as required by Section 2(1) of the Act.  Therefore, I do not have jurisdiction to adjudicate on this complaint.

Extension of Time

As I have already determined that I do not have jurisdiction to adjudicate on this complaint the extension of time to submit the complaint is not relevant.  However, for the sake of clarity I set out the position.

Section 8(2) of the Unfair Dismissals Act, 1977 as amended provides the following:

(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General—

(a) within the period of 6 months beginning on the date of the relevant dismissal,

or

(b) within such period not exceeding 12 months from the date of the relevant

dismissal as the adjudication officer considers appropriate, in circumstances

where the adjudication officer is satisfied that the giving of the notice within

the period referred to in paragraph (a) was prevented due to reasonable

cause,

and a copy of the notice shall be given by the Director General to the

employer concerned as soon as may be after the receipt of the notice by the

Director General.

The complainant on her complaint form stated the date of dismissal to be 06 April 2019.  The complaint form was received by the Workplace Relations Commission on 13 May 2020.  Thus, it was received over twelve months from the date of dismissal stated on the complaint form.   A complaint submitted more than twelve months after the date of dismissal may not be entertained by an adjudication officer.

The complainant when made aware by the Workplace Relations Commission of the relevant time limit to present a complaint of unfair dismissal made a request for an extension of time.  She submitted that the date of dismissal was in fact August 2019.  If August was the date of dismissal the complaint received on 13 May 2020 was still out of time under Section 8(2)(a) of the Act.  The letter of 27 March 2019 confirms the date of dismissal to be 05 April 2019.

An application for an extension of time under Section 8(2)(b) of the Act could only be granted if the adjudication officer is satisfied that the giving of notice of the complaint within six months of the date of dismissal was prevented due to reasonable cause.  In December 2019 the complainant informed the respondent that if she did not receive a reply to her letter and e-mail within seven days she would have no choice but to submit a complaint to the Workplace Relations Commission.  She did not submit her complaint until over four months later, 13 May 2020.  The complainant did not provide a reason why the complaint was not presented to the Workplace Relations Commission in the period between December 2019 to May 2020.

The complainant clearly felt upset by not being recalled in July/August 2019 and by the failure of the respondent to reply to her correspondence.  Indeed, had her registered letter to the respondent been replied to it is possible the matter might have been resolved amicably between the parties.  However, to have a complaint of unfair dismissal investigated a complainant must give notice of the complaint in writing within the time limits contained in Section 8(2) of the Act.  In this case notice of the complaint was received by the Workplace Relations Commission over twelve months after the date of dismissal.

CA-00036264-001

Complaint submitted under Section 8 of the Unfair Dismissals Act, 1977

I find that the complainant did not have one year’s continuous service with the respondent as required by Section 2(1) of the Act.  Therefore, I do not have jurisdiction to adjudicate on this complaint.

Unfair Dismissal

Continuous Service

Extension of Time