Complainant

Respondent

Parties

Miss Suzanne  Doyle

CBRE GWS Ireland Limited

Representatives

  N/A

N/A

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-00059084-001

28/09/2023

The Complainant was employed by the Respondent as a Workplace Assistant from 3 January 2023 until 31 March 2023 (the exact dates are disputed). The Complainant submitted that she earned approximately €37,000 gross per annum (this amount is disputed) and that she worked approximately 40 hours per week. The Complainant submitted that she was unfairly dismissed and is seeking compensation.

The Respondent denied the allegations in their entirety. The Respondent submitted that the Complainant did not have one year of continuous service for the purposes of the Unfair Dismissals Acts 1977-2015 (the “UD Act”). The Respondent further submitted that the Complainant was dismissed during her probationary period due to performance concerns, in accordance with her contract of employment.

The Complainant provided written and oral submissions.

The Complainant submitted that she was employed by Bidvest Noonan from September 2021 until she commenced employment with the Respondent on 3 January 2023. She submitted that she worked as a Workplace Assistant / Facility Coordinator and was most recently based in a client’s office in City Quay, Dublin.

The Complainant submitted that her work involved ordering lunches, taxis and stationery; setting up meeting rooms; ordering catering when required; and booking couriers.

The Complainant submitted that she never completed a job application form to work for the Respondent. The Complainant submitted that in the course of her work, she had been dealing with different vendors, showing them around the building. She submitted that her phone number was passed onto a Respondent employee. She submitted that she subsequently received an email from the Respondent’s Talent Acquisitions Team, inviting her to a “Teams” video call to discuss a “job spec” with the Respondent.

The Complainant submitted that the “Teams” video call took place on 22 December 2022. The Complainant submitted that this was an interview. She further submitted that during the call, she was asked if she would like to work for the Respondent. She submitted that she was informed that her role would be full-time; that she would receive €10,000 more than her (then) current salary; and that her “job spec” would remain the same. The Complainant submitted that she informed the Respondent that she did not have good computer knowledge. The Complainant submitted that she confirmed that she would “go over to” the Respondent.

The Complainant submitted that she commenced working for the Respondent on 3 January 2023, with a new line management. She submitted that she was subsequently “left on her own”. She submitted that she was on sick leave form 20 February 2023 until 15 March 2023. She submitted that she then received a text message relating to a disciplinary meeting. She submitted that she attended the meeting in the Respondent’s office on 20 March 2023. She submitted that during the meeting, she was told that she had not attended training. She submitted that she was also asked why she had taken on the role of Facilities Manager if she was not able for it. The Complainant submitted that she was told that she was dismissed and that she would be paid one week’s pay in lieu of notice. She submitted that she was asked to return her laptop.

The Complainant submitted that she believed that she was being asked by the Respondent to take on the role of a Facilities Manager, which was beyond her capabilities. She submitted that she had made her capabilities known to the Respondent. She felt that she was a “target”. She submitted that no one in the client office had complained about her. She submitted that prior to this meeting, no one had raised issues with her regarding her performance.

The Complainant submitted that her “confidence is knocked”. She submitted that she has completed some “temping”, but has not secured another job. She submitted that she has applied for “loads of jobs”. The Complainant submitted that she is on social welfare. 

Under cross-examination, the Complainant confirmed that she started with the Respondent in January 2023 and that there was no transfer of undertakings or TUPE referred to in her contract of employment.

The Respondent provided written and oral submissions.

Ms. Rachel Carroll, the Respondent’s People Business Partner attended on behalf of the Respondent.

The Respondent’s Business People Partner submitted that the Respondent provides global workplace solutions and more specifically, hard and soft facilities management for its clients. She submitted that the Complainant had previously worked for Bidvest Noonan, another facilities services company. She submitted that the Respondent and Bidvest Noonan had the same client. She submitted that the Complainant was based at that client’s office. She submitted that the Respondent had not taken over Bidvest Noonan. She submitted that there was no transfer of undertakings or TUPE. She submitted that there was no “interaction” between Bidvest Noonan and the Respondent regarding a transfer of the Complainant. She submitted that the Complainant had not been transferred to the Respondent. She submitted that the Complainant was offered a role after meeting with the Respondent’s Talent Acquisitions Team in December 2022 via a video call. She submitted that the Complainant was provided with a new contract of employment in January 2023, which makes no mention of any transfer.

The Respondent submitted that the Complainant worked for the Respondent from 2 January 2023 until 31 March 2023 and that she earned €35,000 gross per annum.

The Respondent’s Business People Partner submitted that the Complainant was not meeting the standards required and that she was dismissed in the course of her probationary period, in accordance with her contract of employment.

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 v. Donal Gillespie t/a Foyle Donegal, UDD2114, (the “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:

The Complainant must have one year of continuous service to bring a complaint pursuant to 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 […]”.

Findings and Conclusion:

As set out above, 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, this preliminary issue goes to my jurisdiction to hear this complaint and so, in the circumstances, should be determined before the substantive complaint of unfair dismissal is considered.

I note that the Complainant was employed by the Respondent as a Workplace Assistant from 2/3 January 2023 until 31 March 2023 – a period of three months. The Complainant provided no evidence to suggest that she was transferred to the Respondent pursuant to a transfer of undertakings or TUPE. The Respondent was clear that no transfer of undertakings or TUPE had taken place. Moreover, there was no mention of a transfer of undertakings or TUPE in the Complainant’s contract of employment dated January 2023. Consequently, 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, One year of continuous service, Jurisdiction.