ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00050999

Parties:

Complaint:

Date of Adjudication Hearing:  20/06/2024

Workplace Relations Commission Adjudication Officer:  Penelope McGrath

Procedure:

In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015. In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.

In circumstances where the fact of dismissal is not in issue, the evidential burden of truth rests with the Respondent. Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a dismissal of an employee  was an unfair dismissal or not it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.

An Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 7).

Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).

As an Adjudicator, I cannot hear or entertain any complaint referred to the WRC under Section 41 of the Workplace Relations Act of 2015 if it has been presented after the expiration of a six-month period beginning on the date of the contravention (as set out in Section 41(6) of the Act).

The Act (at Section 41(8)) does allow for an exception where I can extend that period to twelve months if a Complainant can demonstrate that that the failure to present the complaint within the first six-month period (after the contravention) was due to reasonable cause.

However, nothing allows me to extend the period within which I can accept a complaint to be extended beyond twelve months. My jurisdiction is limited in this regard. In circumstances where more than twelve months have passed since the date of the alleged Dismissal, it is hard to see how any argument could somehow endow the Adjudicator with the jurisdiction to deal with the complaint.

Background:

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

In this file the Complainant named a Store Manager (BD) personally as the Respondent. The Store Manager’s Employer is Tesco Ireland Retail, and an application has been made by the IBEC representative appearing for Tesco Ireland to substitute the name of the corporate entity known as Tesco Ireland for that of the individual Store Manager. This has been requested by Tesco in circumstances where Tesco wishes to avoid its Employee being named as a Respondent and it is not to be interpreted as an admission as to liability on the part of the Respondent.

The Complainant had been employed by a company known as OCS Limited since 2020. As I understand it, in this job he was placed as a security Officer into branches of Tesco Ireland. On the 24th of February 2023 the Complainant was dismissed, and he challenges the fairness of that dismissal as is his right. The Complainant brought this matter to the attention of the workplace relations commission through his complaint form, seeking redress under the Unfair Dismissals legislation. I understand this ADJ File 45648 was issued through the WRC in and around mid-2023.

At a hearing heard by my colleague Brian Dalton Adjudicator (held on 8th of February 2024), evidence was adduced which confirmed that the Complainant had incorrectly identified his Employer as Tesco Ireland when in fact the correct Employer was OCS Limited. OCS as I understand it, provides Managed Services to Tesco and this meant that the Complainant was never an employee of Tesco and was at all times an Employee of OCS limited. A decision confirming these issues issued on the 1st of March 2024. Mr Dalton dismissed the complaints of Unfair Dismissal as against Tesco Ireland as being misconceived.

I am satisfied that the Complainant knew and understood the outcome of the hearing conducted by Mr. Dalton on the 8th of February 2024. In fact, the Complainant went to issue a new complaint form which application was received by the WRC on the 26th of February 2024 (some two weeks after the hearing conducted by Mr. Dalton and before the final decision issued).

In the new workplace relations complaint form issued by the Complainant on the 26th of February 2024 the Complainant managed to identify up to four potential Respondents. These included a named store manager, a partially named store manager, Tesco Deerpark, and OCS Limited. This was a matter of some concern within the WRC and the decision was made to separate out the potential Respondents with a fresh ADJ file being given to each of the named/partially named potential Respondents.

I have had an opportunity to chase this matter up internally and I am satisfied that there are still three further matters waiting to be given a case Officer and to be listed for hearing. These will be ADJ File 50997, ADJ File 51070 and ADJ File 51071. It is to be hoped that these three remaining files might be listed together in due course. I understand separate and new complaint numbers have also been attached to these files.

In the meantime, I am dealing with the within matter which is a claim for Unfair Dismissal against a store Manager substituted by Tesco Ireland.

The Respondent has invited me to confirm that I do not have jurisdiction in circumstances where the Complainant has stated that he was dismissed on the 24th of February 2023 and the within complaint form issued on the 26th of February 2024. A period of twelve months and two days has elapsed.

As previously noted, as an Adjudicator, I cannot hear or entertain any complaint referred to the WRC under Section 41 of the Workplace Relations Act of 2015 if it has been presented after the expiration of a six-month period beginning on the date of the contravention (as set out in Section 41(6) of the Act).

The Act (at Section 41(8)) does allow for an exception where I can extend that period to twelve months if a Complainant can demonstrate that that the failure to present the complaint within the first six-month period (after the contravention) was due to reasonable cause.

However, nothing allows me to extend the period within which I can accept a complaint to be extended beyond twelve months. My jurisdiction is limited in this regard. In circumstances where more than twelve months have passed since the date of the alleged Dismissal, it is hard to see how any argument could somehow endow this Adjudicator with the jurisdiction to deal with the complaint.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Dated:  14-08-2024

Workplace Relations Commission Adjudication Officer:  Penelope McGrath

Key Words: