FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES: SVETAC LIMITED (REPRESENTED BY AISLING O'DONNELL B.L. INSTRUCTED BY KEN KENNEDY SOLICITORS) - AND - MR LUIZ ALBERTO PEREIRA DA SILVA DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(s)ADJ-00034768 CA-0045715-002 DETERMINATION: Mr. da Silva, ‘the Complainant’ was employed by Svetac Ltd., ‘the Respondent’, from 16 December 2020 to 16 June 2021, when he was dismissed. The Complainant lodged a complaint under the Unfair Dismissals Act 1977, ‘the Act’, with the Workplace Relations Commission, ‘WRC’. The Complainant failed to attend the hearing by an Adjudication Officer, ‘AO’. The AO Decision noted that the Complainant had not attended the hearing, that a finding in favour of the Complainant could not be made and that the Complainant had not been unfairly dismissed. The Complainant lodged an appeal with this Court, explained that he had only received two days’ notice of the WRC hearing due to a change of address. In lodging his submission in support of his appeal, the Complainant stated that his termination was discriminatory, contrary to the Employment Equality Acts 1998-2015. The applicable law. Unfair Dismissals Act 1977. Exclusions. 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 insection 4of 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. Workplace Relations Act 2015. Appeal to Labour Court from decision of adjudication officer 44.(1) (a) A party to proceedings undersection 41may appeal a decision of an adjudication officer given in those proceedings to the Labour Court and, where the party does so, the Labour Court shall— (i) give the parties to the appeal an opportunity to be heard by it and to present to it any evidence relevant to the appeal, (ii) make a decision in relation to the appeal in accordance with the relevant redress provision, and (iii) give the parties to the appeal a copy of that decision in writing. (b) In this subsection “relevant redress provision” means— (i) in relation to an appeal from a decision of an adjudication officer undersection 41relating to a complaint under that section of a contravention of a provision of an enactment specified inPart 1or2ofSchedule 5, the provision of that enactment specified inPart 2ofSchedule 6, (ii) in relation to an appeal from a decision of an adjudication officer undersection 41relating to a dispute as to the entitlements of an employee under an enactment specified inPart 3ofSchedule 5, the provision of that enactment specified inPart 2ofSchedule 6and (iii) in relation to an appeal from a decision of an adjudication officer undersection 41relating to a complaint undersubsection (3)of that section, paragraph 2 of Schedule 2 to the Act of 2012. (2) An appeal under this section shall be initiated by the party concerned giving a notice in writing to the Labour Court containing such particulars as are determined by the Labour Court in accordance with rules under subsection (5) of section 20 of the Act of 1946 and stating that the party concerned is appealing the decision to which it relates. Deliberation. It is not in dispute that the Complainant has less than one year’s service in the employment of the Respondent. It cannot, therefore, be in dispute that, in accordance with s.2(1) of the Unfair Dismissals Act 1977, the Court has no jurisdiction to hear an appeal regarding the dismissal of the Complainant under that Act. It is equally clear under s.44 of the Workplace Relations Act 2015 that the Court’s jurisdiction in employment law cases is confined to consideration of appeals from Decisions of Adjudication Officers. The Court cannot act as a court of first instance in respect of employment law cases. Therefore, as no complaint was made to the WRC under the Employment Equality Act, the Court has no jurisdiction to hear the Complainant under that Act. Accordingly, the Court is obliged to dismiss the Complainant’s appeal. Determination. The Decision of the Adjudication Officer is upheld.
NOTE Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary. |
