Complainant

Respondent

Parties

Solomon  Adebisi

Morbury Ltd t/a Top Security

Representatives

  Self-Represented

 Management Support Services (Ireland) Ltd

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-00056750-001

18/05/2023

The Complaint Form was received by the Workplace Relations Commission on 18 May 2023.

The Complainant swore an Affirmation at the outset of the hearing.

Eammon Dolan, Operations Manager with the Respondent gave evidence on Affirmation. The name of the Respondent was amended on consent at the hearing.

It was agreed the Complainant was paid €13.50 p/h as a Mobile Security Supervisor.

There was a dispute as to the lengthy of service and whether the Complainant had sufficient service to bring a claim under the Unfair Dismissals Act 1977. This is dealt with as a preliminary issue.

Preliminary Issue

It was the Complainant’s case that his claim was in time.

Preliminary Issue

It is the Respondent’s case that the Complainant did not have the required service under the Unfair Dismissal Act 1977 – 2015 to submit a claim under the unfair dismissal. It was submitted that the Complainant commenced work on 20 May 2022 and was dismissed on 17 May 2023.

Preliminary Issue

Section 1 of the Unfair Dismissal Act 1977 -2015 defines “dismissal”

“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,

Section 2 (1) 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 relied on Section 8 of the Minimum Notice and Terms of Employment Act, 1973 which provides:-

8.—Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.

It was undisputed that the Complainant was dismissed with immediate effect by letter dated 17 May 2023. The reason given by the Respondent to the Complainant for his dismissal is “after a thorough review of your performance and the disciplinary measures taken, we have decided to terminate your employment with Top Security , effective immediately.”

There is no disciplinary investigation report , no disciplinary outcome meeting and letter detailing a sanction nor is there any reference whatsoever to a finding of misconduct on the part of the Complainant thereby being the reason for his dismissal.

Consequently, I find that the Complainant was entitled to minimum notice in accordance with Section 4 of the Minimum Notice and Terms of Employment Act, 1973:-

“4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,”

Therefore, the date of dismissal is 17 May 2023 plus the one-week statutory notice period , which is also reflected in the contract of employment. This leaves the date of dismissal as one week later on 24 May 2023. Consequently, the Complainant did have the one year’s continuous service required under the Unfair Dismissals Act 1977-2015.

It is also noted there was no evidence presented that payment was made in lieu of notice as per the Labour Court decision inAction Health Enterprises Ltd v Michael D’Arcy UD/19/141.

There is another date that must be considered in this case where the Complainant submitted his complaint to the WRC on 18 May 2023, which is in advance of 24 May 2023, i.e. the date of dismissal. The question is whether I have jurisdiction in this where the Complaint was submitted while the Complainant was still an employee of the Respondent?

The EAT in Neeson v John O’Rourke & Seān O'Rourke Chartered Accountants UD2049/2011considered this question in light of the amendment to Section 8 (2) by the Workplace Relations Act 2015:

“(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) the Director General—

(a) within the period of 6 months beginning on the date of the relevant dismissal,   (emphasis added)”

As a consequence, the Complainant was not dismissed on 18 May 2023 where the date of dismissal has been found to be 24 May 2023. Consequently, I have no jurisdiction in this case.

I do not have the jurisdiction to decide on this complaint.

Unfair Dismissal – Date of Dismissal – Minimum Notice