Complainant

Respondent

Parties

Prateek Khera

Pineapple Pink Pineapple Pink Restaurant

Representatives

William Wall Peninsula

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-00055365-001

02/03/2023

The Complainant began his employment as a Chef de Partie with the Respondent on 15 January 2022 and was paid €600 per week. He stated on his complaint form that he was dismissed because of his membership of a trade union.

The Complainant stated in evidence at the hearing that he had not been dismissed as a result of his membership of a trade union and asserted that he had made an error on his complaint form.

The Respondent did not present any evidence at the hearing.

The Relevant Law

The Unfair Dismissal Act at Section 2 exclusions states;

(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 […],

Section 6 of that Act states;

(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(a) the employee's membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts 1941 and 1971 [as amended by the Industrial Relations Act 1990], where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage,

The Unfair Dismissal (Amendment) Act 1993 states at Section 14;

Dismissal of persons during apprenticeship, training, etc. or during first year of service, for trade union membership or activities

Sections 2(1), 3 and 4 and subsections (1) and (6) of section 6 of the Principal Act shall not apply to a person referred to in paragraph (a) or (b) of the said section 2(1) or the said section 3 or 4 who is dismissed if the dismissal results wholly or mainly from one or more of the matters referred to in subsection (2)(a) of the said section 6.

Findings:

Although I note that dismissal as a fact is not in dispute, in order for the Complainant to have the protection of the Act, the dismissal must have arisen wholly or mainly from becoming a member of or engaging in activities on behalf of a trade union.  This assertion was presented by the Complainant in his complaint form, as his employment with the Respondent lasted less than 12 months.

Although the Complainant stated in his complaint form that his dismissal arose from his membership of a trade union, he stated in his evidence at the hearing that he was not a member of a trade union and did not engage in activities on behalf of a trade union, while he was working with the Respondent.

Considering this evidence and that he did not have the requisite 12 months service to pursue a complaint under the Act, I find that I do not have jurisdiction to hear this complaint.

As the Complainant’s dismissal did not arise wholly or mainly from being a member of or engaging in activities on behalf of a Trade Union and he did not have the requisite 12 months service to pursue a complaint under the Act, I find that I do not have jurisdiction to hear this complaint.