Complainant

Respondent

Anonymised Parties

Job Applicant

Software Company

Representatives

  Self

 No Show

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act

CA-00059045-001

26/09/2023

The worker received a job offer from the software company and it was subsequently withdrawn.

She states that she had resigned from her previous employer. She stated that she had disclosed to her employer a matter that might give rise to a failed reference check.

Date of planned Commencement: 15/08/2022

Date of Notice received (if applicable): 25/07/2022

The offer was withdrawn on the 25th of July 2022 before the workers employment began due to a failed reference check.

She has brought this case under the Industrial Relations Act 1969 claiming Unfair Dismissal.

The definition of worker under the Industrial Relations Act 1990 is:

“worker”.

23.—(1) In the Industrial Relations Acts, 1946 to 1976, and this Part, “worker” means [a member of the Garda Síochána referred to in subsection (1A) and] any person aged 15 years or more who has entered into or works under (or, where the employment has ceased, worked under) a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour including, in particular, a psychiatric nurse employed by a health board and any person designated for the time being under subsection (3) but does not include—

(a) a person who is employed by or under the State,

(b) a teacher in a secondary school,

(c) a teacher in a national school,

(ca) a teacher employed by an education and training board,

In this case while the Employer had made an offer if was subject to reference checks and based on that check the offer was withdrawn.

On the facts before me I don’t have jurisdiction to hear this dispute as the applicant is not a worker as defined under the Act and therefore, I must decline jurisdiction. A worker is defined as:

has entered into or works under (or, where the employment has ceased, worked under) a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour

The worker received a job offer from the software company and it was subsequently withdrawn.

She states that she had resigned from her previous employer. She stated that she had disclosed to her employer a matter that might give rise to a failed reference check.

The Employer failed to attend.

The 1990 Industrial Relations Act defines a worker as:

“worker”.

23.—(1) In the Industrial Relations Acts, 1946 to 1976, and this Part, “worker” means [a member of the Garda Síochána referred to in subsection (1A) and] any person aged 15 years or more who has entered into or works under (or, where the employment has ceased, worked under)] a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour including, in particular, a psychiatric nurse employed by a health board and any person designated for the time being under subsection (3) but does not include—

(a) a person who is employed by or under the State,

(b) a teacher in a secondary school,

(c) a teacher in a national school,

(ca) a teacher employed by an education and training board,

On the facts before me I don’t have jurisdiction to hear this dispute as the applicant is not a worker as defined under the Act and therefore, I must decline jurisdiction. A worker is defined as:

has entered into or works under (or, where the employment has ceased, worked under) a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour

A key question is whether the parties had in fact entered into an agreement.

The worker has presented comprehensive documentation that indicates that both parties expected that the contract of employment would commence. That does not mean that the parties had entered into agreement as the contract was conditional on satisfactory references.

The Industrial Relations Act refers to has entered into or works under, which on the plain reading appears to provide for pre commencement relationship and also when the contract actually commenced. The Interpretation Act 2005 states:

5.—(1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)—

(a) that is obscure or ambiguous, or

(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of—

(i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2 (1) relates, the Oireachtas, or

(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,

the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.

(2) In construing a provision of a statutory instrument (other than a provision that relates to the imposition of a penal or other sanction)—

(a) that is obscure or ambiguous, or

(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of the instrument as a whole in the context of the enactment (including the Act) under which it was made,the provision shall be given a construction that reflects the plain intention of the maker of the instrument where that intention can be ascertained from the instrument as a whole in the context of that enactment.

On the plain reading of the Industrial Relations Act there are two scenarios where the Commission has jurisdiction to hear a dispute when the contract has commenced and when a contract has been entered into but not commenced.

However, in this case the contract was conditional on satisfactory references. As a reference was not satisfactory this meant that the contract did not commence and was not entered into. As the contract was not entered into I have no jurisdiction to hear the dispute.

On the plain reading of the Industrial Relations Act there are two scenarios where the Commission has jurisdiction to hear a dispute when the contract has commenced and when a contract has been entered into but not commenced.

However, in this case the contract was conditional on satisfactory references. As a reference was not satisfactory this meant that the contract did not commence and was not entered into. As the contract was not entered into I have no jurisdiction to hear the dispute.

For this reason I must decline jurisdiction.

No Jurisdiction-Contract Defintion