Complainant

Respondent

Parties

Jack Hargrave

Boston Scientific Ltd

Representatives

Fachtna O'Driscoll Fachtna O'Driscoll Solicitors

Sophie Crosbie IBEC 

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-00034995-001

03/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00034995-002

03/03/2020

The respondent has made a formal request that a decision is reached on two preliminary matters before the substant complaints are heard. In this regard, the Respondent is putting forward the following arguments which specifically deal with the preliminary matter only.

The respondent stated a legal argument -preliminary matters need to be determined in the first instance It was submitted in 2015 Supreme Court Decision Record Number 2011/10/r Appeal Number 356/2001 between Bisi Adigun (Applicant) and the Equality Tribunal(respondent) in which Mr Justice Carleton delivered a judgement which pertains to all cases before the Tribunal or quasi-Judicial Tribunal regarding the matter of preliminary arguments.

The Supreme Court held that the resources of Courts and Tribunals are limited. The Court held that it is a pointless exercise to engage in a trail of fact over several days when /whether or not the resolution of such facts may yield any redress to the claimant is clearly the first hurdle that he or she must cross.

The respondent submitted the case of Employee V Employer UD 969/20-0-9  and Bus Eireann v Siptu PTD 8/2004  that preliminary point  should be determined separately from other issues arising in a case where it could lead to considerable savings in both time and expense and where the point was a question of pure law where no evidence was needed and where no further information was required

Unfair Dismissal-Claim Number Ca 17383-004 alleged dismissal for more than 12 months service

Preliminary Point 1 The claim is statue barred as the claimant does not have one year’s service

The respondent submitted that the complainant states in his complaint form that he was employed by the respondent on the 24th July 2017. This is incorrect. The Complainant was employed by the respondent on 22nd June2019. Prior to that date, he was employee of Kelly Services Ltd. The Respondent submitted a copy of the complainant’s employment contract which makes it clear that the complainant commenced employment on the 22nd June 2019. No prior contract of employment, verbal or written existed between the respondent company and the complainant. The Respondent submitted confirmation that the employee was an employee of Kelly Services Ltd and not the respondent prior to the 22nd June 2019.

Preliminary Point 2 – The Complainant was on a probationary period.

The respondent submitted that the complainant was on 12 months’ probation, and he was thereby excluded from the ambit of the Unfair Dismissal Act

The additional case law was submitted to support their position.

The complainant took issue with the respondent ‘s submission and where it they  submitted  PayPal Europe Services v Eimear Musgrave.

The facts reported show that the employee was not under the direction of the respondent for 12 months. She only started working for the hirer on the 1st August which was 48 weeks prior to the dismissal. The facts she had signed a contract of employment with the agency in July, which stated that the employment would commence in August didn’t invoke section 13 as she was not working for the hirer. That is completely different from the facts in this case where the employee was working for the hirer for over 12 months

In Desktop Support Engineer IT Services v Service Provider

The complainant again stated that this case was entirely irrelevant. The employee was working under the control of the company ’P’ and not the respondent so that also does not give rise to section 13 of the Act.

In relation to the failure to invoke an appeal the Complainant submits that the failure to invoke an appeal does not deprive the WRC of jurisdiction to hear the claim under the Unfair Dismissal Legislation.  Such an argument completely undermines the efficacy of the Act.

It was further submitted that the employee handbook on its disciplinary policy states that the procedure for the appeal will be provided after a decision is made to dismiss.

The complainant submitted additional arguments to support their position

Both parties made written and verbal submissions and taking on board the Supreme Court ruling I am going to make a decision on the preliminary issues

Preliminary point 1 -The claim is statue barred as the claimant does not have one years’ service

 I find that the complainant was employed by Kelly Services Limited and based on the contract of employment the complainant was employed by the respondent on the 22nd June 2019 the alleged dismissal took place on 18 /12/2019

I find that Section 13 of the Act does not operate to create continuity of service for the purpose of the Act for an employee of an employment agency who subsequently becomes a fixed term worker in the employment of an employer to whom he had previously been assigned.

I find that by the operation of Section 1 (b) of the First Schedule of the Act of 1973, the complainant’s service with the respondent cannot be found to be continuous with his services with the agency

Preliminary point 2

The Complainant was on probation and the letter of dismissal of 19th December 2019   states

He(complainant) had a right of appeal within 14 days from the date of the letter.

Findings

It has been recognised policy of the agencies that internal procedures must be fully exhausted prior to a referring of a case to WRC.in t first instance

I find that the complainant was provided with the opportunity to appeal the dismissal in the letter of the 19th December2019 but failed to do so.

 Section 8 of the Unfair Dismissal Acts 1977-2015 requires that I make a decision in relation to the Unfair Dismissal Claim.

I find that the complainant had less than one year’s year continuous service with the respondent who dismissed him. Consequently, by operation of the Act at Section 2 (1), the complainant cannot maintain a complaint under the act.

 CA-34995-002

Minimum Notice

I find that the complainant was employed by the respondent from the 22nd June 2019 to the 18th December 2019, he was paid €586 per week.

Findings

I find that the complainant was dismissed on the 18th December 2019 however I find taking the time of the year and his service into consideration that he was entitled to a weeks’ notice

Decision

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint

I find the complaint to be well founded and I award the complainant his (€586) weeks wages