Complainant

Respondent

Parties

Mr. Jonathan  Muldoon

Department of Social Protection

Representatives

  N/A

Ms. Eileen Burke, The Chief State Solicitor’s Office, instructing Ms. Emma Cassidy B.L..

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-00054916-001

07/02/2023

In his Complaint Form received on 7 February 2023, the Complainant outlined that he was employed by the Respondent from 11 July 2022 until 3 February 2023 as a Permanent Clerical Officer. He outlined that he earned €678 gross per week, working 35 hours. The Complainant alleged that he was constructively dismissed by the Respondent.  

The Respondent raised two preliminary issues which it alleged went to the Adjudication Officer’s jurisdiction to hear this matter insofar as: (i) the Complainant did not have one year of continuous service; and (ii) there was no dismissal.

The Complainant provided written and oral submissions.

The Complainant’s complaint was grounded inter alia on having one year of continuous service, pursuant to section 2(1)(a) of the UD Act.

In his Complaint Form and oral submissions, the Complainant outlined the following dates:

• 11 July 2022 – He commenced employment as a Permanent Clerical Officer.
• 27 January 2023 – He resigned by way of a letter; and
• 3 February 2023 – His employment ended.

The Complainant acknowledged that the above dates indicate that he has approximately six months of continuous service. However, the Complainant submitted that he had one year of continuous service for the purposes of section 2(1)(a), if his previous period of employment was taken into account. To this end, the Complainant submitted that he had worked for the Respondent between April 2021 and February 2023 as follows:

• 12 April 2021 to 8 July 2022 – The Complainant worked as a Temporary Clerical Officer in the “National Monitoring Team” at the Blanchardstown Intreo Centre on a fixed-term contract. In early January 2022 the Complainant signed a new twelve-month fixed-term contract and continued to work in the same temporary position. The Complainant resigned on 8 July 2022 to take up a permanent position (outlined below). In his written submissions, the Complainant states “I resigned from my Temporary Clerical Officer position in the National Processing Team on Friday the 8th of July 2022.” In his oral submissions, the Complainant also confirmed that he resigned from this position.

• 11 July 2022 to 3 February 2023 – The Complainant signed a Probationary Contract on 28 June 2022 and took up the position of Permanent Clerical Officer in the “Reception Customer Maintenance Section” at the Clondalkin Intreo Centre on 11 July 2022. The Complainant outlined that he resigned from this position by letter dated 27 January 2023 and that his employment ended on 3 February 2023. The Complainant submitted that he had “no other option” but to take up alternative employment and that he was constructively dismissed.

The Complainant then took up the position of Temporary Clerical Officer in Newbridge Intreo Centre, on a fixed-term contract which ran from 7 February 2023 to 10 November 2023. The Complainant outlined that he left this position in July 2023 and that he now has a new position with a local authority.

Finally, the Complainant submitted that his constructive dismissal complaint concerning his Permanent Clerical Officer position held from 11 July 2023 until 3 February 2023 should be heard. It was explained to him that the Respondent had raised preliminary issues for consideration. The Complainant acknowledged that he had been afforded sufficient opportunity to respond to the Respondent’s preliminary issues and that he had nothing further to say regarding those issues.

The Respondent provided written and oral submissions. The Respondent raised two preliminary issues which it alleged went to the Adjudication Officer’s jurisdiction to hear this matter insofar as:

·       The Complainant did not have the requisite one year of continuous service pursuant to section 2(1)(a) of the Unfair Dismissals Act 1977 – 2015 as amended, (the “UD Act”) in order to bring a complaint; and

·       No dismissal, as defined by the UD Act, took place.

One Year’s Continuous Service:

The Respondent submitted that the Complainant commenced his position as a Permanent Clerical Officer on 11 July 2022. This was a permanent position, pending successful completion of a one-year probation period, as evidenced in the Letter of Appointment and Probationary Contract which the Complainant signed on 28 June 2022. The Respondent outlined that the Complainant resigned approximately six months later on 27 January 2023 and that his employment came to an end on 3 February 2023.

The Respondent relied on section 2(1)(a) of the UD Act, which provides:

“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 outlined that the Complainant could not count distinct periods of employment together for the purposes of bringing a complaint pursuant to the UD Act. The Respondent pointed to the separate and distinct contracts and resignations concerning each of the Complainant’s periods of employment. By way of the specific delineation of the period of employment at the centre of this complaint, the Respondent relied on the Complainant’s Probationary Contract, signed on 28 June 2022 and his letter of resignation dated 27 January 2023.

The Respondent further submitted that the Complainant’s two positions differed inter alia by virtue of being: temporary and permanent respectively; based in different offices; and awarded following separate PAS competitions.

Based on the foregoing, the Respondent submitted that the Complainant does not have one year of continuous service in which to bring his complaint.

No Dismissal:

The Respondent further submitted that the Complainant had not been dismissed. The Respondent outlined that there was no dismissal as the Complainant resigned on 27 January 2023, to take up another position that he had accepted on 14 December 2022 — approximately six weeks prior to his resignation.

The Respondent relied on section 1 of the UD Act, which provides:

““dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, …”

Respondent’s Conclusion:

The Respondent concluded that the Adjudication Officer does not have jurisdiction to hear this matter and should decide the matter on this basis.

The Respondent relied on Donegal Meat Processors v. Donal Gillespie t/a Foyle Donegal, UDD2114 (the “Donegal Meat Processors Case”), which held that for the Court to consider the substantive matter before issuing a decision on a preliminary objection that pertained to jurisdiction “is akin to asking the Court to exercise its jurisdiction before it determines whether or not it has jurisdiction, in the first instance.”

The Respondent also relied on Stapleton v. Achushla Ltd & Ors ADJ-00037399 where the Adjudication Officer held that, in the circumstances of that case, it would not be appropriate to proceed to hear substantive allegations before deciding a preliminary issue of jurisdiction.

The Law:

In Brothers of Charity (Roscommon) Ltd. v. Marian Keigher EDA1014, the Labour Court considered the determination of an issue by way of preliminary decision. The Labour Court referred to the judgments of Kenny J. in Tara Explorations and Development Co. Ltd v. Minister for Industry and Commerce [1975] IR 242; and Hardiman J. in B.T.F. v. Director of Public Prosecutions 2 ILRM 367 (the “B.T.F. Case”). In the latter case Hardiman J, found:

"It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary matter. In a case where a point is raised which in and of itself and without regard to anything else may terminate the whole proceedings, clearly a strong case can be made for its trial as a preliminary issue. The classic example is where the Statute of Limitations is pleaded. In other cases, however, the position may be much less clear".

In Donegal Meat Processors Case, the Labour Court noted that, seeking for the substantive issue and the jurisdictional issue to be dealt with together was:

“akin to asking the court to exercise its jurisdiction before it determines whether or not it has jurisdiction in the first instance.  […] Only if the court determines that it has jurisdiction to do so can it go on to consider the fairness or otherwise of the dismissal itself”.

One Year of Continuous Service:

Section 2(1)(a) of the UD Act provides:

“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 […]”.

Findings and Conclusion:

The Complainant must have one year of continuous service to bring a complaint pursuant to section 2(1)(a) of the UD Act. Following the caselaw outlined above, and particularly the B.T.F. Case, this is an issue which “in and of itself and without regard to anything else may terminate the whole proceedings” and so there is a “strong case” for its determination by way of preliminary decision. Moreover, pursuant to the Donegal Meat Processors Case, the preliminary issues raised here go to my jurisdiction to hear this complaint and so, in the circumstances, should be determined before the substantive complaint of unfair dismissal is considered.

As regards, the Complainant’s period of continuous service, I note the following:

·       From 12 April 2021 to 8 July 2022, the Complainant worked as a Temporary Clerical Officer in the “National Monitoring Team” at the Blanchardstown Intreo Centre on the basis of two consecutive fixed-term contracts. On 8 July 2022, the Complainant resigned from this position.

·       On 11 July 2022, following his success in a PAS competition, the Complainant commenced a permanent position as a Permanent Clerical Officer in the “Reception Customer Maintenance Section” at the Clondalkin Intreo Centre. On 28 June 2022, the Complainant signed a Probationary Contract, prior to commencing this position. The Complainant resigned on 27 January 2023 and his employment came to an end on 3 February 2023. It is this position which is central to this constructive dismissal complaint.

These periods of employment, concerning two different positions, were delineated by separate and distinct contracts and resignations. The Complainant cannot count these distinct periods of employment together for the purposes of bringing a complaint pursuant to the UD Act. As regards his complaint under the UD Act, the Complainant was employed as a Permanent Clerical Officer from 11 July 2022 until 3 February 2023 – a period amounting to less than seven months of continuous service. I find that the Complainant does not have the requisite one year of continuous service to bring a complaint under the UD Act. I therefore have no jurisdiction to hear the complaint.

The Complainant does not have the requisite one year of continuous service to bring a complaint under the Unfair Dismissals Acts 1977 – 2015, as amended. I therefore have no jurisdiction to hear this complaint.

Unfair Dismissals Acts 1977 – 2015, Service, Jurisdiction.