ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00025555
Parties:
| Complainant | Respondent |
Parties | Mary McManus | The Department of Employment Affairs and Social Protection. |
| Complainant | Respondent |
Representatives | Self-Represented | D.Dodds BL instructed by the CSSO / Jennifer Murray , Employment Law Section |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00032477-001 | 26/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00035903-001 | 28/04/2020 |
Date of Adjudication Hearing: 03/11/2021
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Section 7 of the Terms of Employment (Information) Act, 1994 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
This matter was heard by way of 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.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was available to all witnesses.
Due to Covid 19 difficulties the publication of the Adjudication finding was delayed.
Background:
The case at issue concerns the alleged Unfair Dismissal, with associated Employment Information complaints, of the Complainant, a Community Employment Supervisor by the Respondents – the Department of Employment Affairs and Social Protection. (The DEASP) The Employment began on the 14th November 2002 and ended on the 6th March 2020. The rate of pay was €772.50 Gross per week for a 39 Hour week.
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1: Opening Legal issues / Recent Labour Court Determinations.
In opening arguments, the Respondent Legal Representative, Mr. David Dodd BL, drew attention to Labour Court Determinations TED2012 and FTD 204 which had issued in December of 2020.
The case before Adjudication – CA-00035903 - had been referred on the 28th April 2020.
These Determinations were appeals of Adjudication Officer Decision ADJ- 00018309 on virtually identical facts and background.
In the Determinations cited the Labour Court had determined that the DEASP did not have an employment relationship with the Complainant, a colleague of the Complainant in this case.
Accordingly, the Adjudication in this case, CA-00035903, did not have proper Legal standing as the Respondent is, following the Labour Court, not the Complainant’s employer.
This argument was accepted, regrettably by the Complainant, and the Adjudication did not proceed.
A Pro Forma finding was requested.
2: Findings and Conclusions: CA-00035903
The Adjudication Officer, in this case, does not have proper Jurisdiction to proceed. The case is Not Well Founded. |
3: Decision: CA-00035903
Section 41 of the Workplace Relations Act 2015; Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions of the cited Acts.
As set out above, in the Opening Section of the Adjudication finding, the Adjudication Officer, following Labour Court Determinations, TED2012 and FTD 204, does not have proper Jurisdiction to proceed with this case.
Accordingly, the Case is Not Well Founded.
Dated: 1st February 2022
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Correct Employer, Adjudication Jurisdiction. DEASP Community Employment Schemes |