ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00050746

Parties:

Complaints:

Date of Adjudication Hearing:  27/09/2024

Workplace Relations Commission Adjudication Officer:  Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015; Section 45A of the Industrial Relations Act, 1946 and Section 8 of the Unfair Dismissals Act, 1977 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.

The required Oath / Affirmation was administered to all witnesses present. The legal peril of committing Perjury was explained to all parties.

No issue regarding confidentiality arose.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

Background:

1:        Opening Legal Arguments

CA-00062037-002

Section 2(1)(a) of the Unfair Dismissals Act,1977

1:1        Respondent Arguments

The Respondent Employer made the opening Legal Argument that the Complainant did not have the requisite service to qualify under the Unfair Dismissals Act,1977.

He cited Section 2(1) (a) of the Unfair Dismissals Act,1977 which states

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 Employment began, according to the Respondent, on the 30th March 2023 and ended on the 17th February 2024 - a period of 10 months and 18 days. Even taking the Complainant’s alleged (and strongly contested) start date of the 12th March 2023 it would still be a period of 11 months and 5 days.

The exemptions to the 12-month rule, generally set out at Section 6(1) and (2) of the Act do not apply. These are situations of pregnancy, religious beliefs, sexual orientation, making a protected disclosure, trade union activities, race, colour, membership of the travelling community and other grounds etc. None of these grounds were pleaded by the Complainant. It is reasonable to assume that they did not apply.

The Respondent view was that the Unfair Dismissals Act,1977 could not apply.

Payroll and time sheet evidence was produced in support of the Respondent case.

1:2      Complainant Arguments

The Complainant argued that his outstanding Holidays should have been added to his service to bring his service to close to 12 months.

In oral testimony the Complainant reluctantly argued that while he might be short on service fair play and justice demanded that his case be answered.  He had been denied all Employment procedures and given no opportunity to challenge the dismissal decision or the alleged “Evidence” used against him.

1:3      Adjudication conclusion.

Based on the evidence presented the Adjudication conclusion has to be that the Complainant does not have the qualifying 12-month service to bring a complaint under the Unfair Dismissal Act,1977.  

 In regard to adding Holidays to Service to bring it within the 12 month rule legal precedents are not favourable in this issue. In Maher v B & I line UD 271/1978, it was ruled that holiday entitlements cannot be added to service to make up the 12-month qualification,

In addition, none of the exceptions set out in Section 6 of the UD 1977 Act, to the 12-month qualifying service rule apply.

Accordingly, the Complaint cannot be seen to be properly legally Founded and has to fail on strictly Legal grounds.

2:        Opening Legal Arguments

2:1      Section 45 A of the Industrial relations Act,1946

1. 00062037-001

Decision of adjudication officer under section 41 of Workplace Relations Act 2015

45A.— A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of an employment regulation order in relation to a worker shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the employment regulation order, or

(c) require the employer to pay to the worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the worker’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977

The Respondent argued that no ERO-Employment Regulation order was applicable to this case.

The Complainant was unclear on this point.

2:2       Adjudication Conclusion

The Adjudication Officer, after some research, was unable to identify an ERO that was appliable to this case either Geographically or Industry based.

Accordingly, the Complaint cannot be seen to be properly Legally founded.

It has to fail on Legal Grounds.

3:        Findings and Conclusions:

4:        Decision:

Section 41 of the Workplace Relations Act 2015; Section 45A of the Industrial Relations Act, 1946 and Section 8 of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions of the cited Acts.

4:1        CA-00062037-001 – Industrial Relations Act,1946

The Complaint cannot proceed as no Employment Regulation Order is applicable to this case.

4:2     CA-00062037-002   - Unfair Dismissals Act,1977

The Adjudication officer has no proper jurisdiction to proceed as the Complainant does not have the required 12 months employment service as required by Section 2(1)(a) of the Act.

Accordingly, the Complaint must be deemed to fail on strictly legal Grounds.

Dated:   23-10-24

Workplace Relations Commission Adjudication Officer:  Michael McEntee

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