UDD2540

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00046371 (CA-00057319-002)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 8 November 2023  in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015.

A Labour Court hearing took place on 16 September 2025.

The following is the Decision of the Court:-

DECISION:

1Background to the Appeal

 This is an appeal by Ms Burke (the Complainant) against Adjudication Officer’s Decision ADJ-00046371 CA-00057319-001 given under the Unfair Dismissals Acts 1977 to 2015 (the Act’s) in a claim of constructive dismissal against her previous employer Abbott Ireland (the Respondent). The Adjudication Officer held that she did not have jurisdiction to investigate the complaint, as the Complainant did not have 52 weeks service.

The complaint was lodged with the WRC on 22 June 2023 and appealed to the Labour Court 8 November 2023. A Labour Court hearing was held on 16 September 2025 in Sligo.  The Complainant resigned her position 22 May 2023.   The relevant period for the purpose of the Act is 23 December 2022 to 22 June 2023.  The Respondent submitted that the Court did not have jurisdiction to hear the case as the Complainant did not have 12 months service with the Respondent.  The representative for the Complainant argued that the Court did have jurisdiction.

One of the issues raised by the representative for the Complainant in both his oral and written submission was the fact that the hearing was originally scheduled for Dublin. The Court clarified that this was an error on the Court’s part and that the Court had rectified same when it was brought to their attention. The Representative noted that neither he nor the Complainant had been informed in writing that this was a Court error. The Court offered to have a letter of apology for the error issued to his client. After consulting with his client, he confirmed that it was not necessary. He went on to make a comment and the Court sought clarification as to whether he was alleging bias by the Court. After a short reflection he confirmed that he was not.

2 Summary of Complainant’s submission

The Representative for the Complainant stated she commenced with the Respondent on 16 March 2022 as a quality assurance co-ordinator. Her initial employment was with an employment agency. Without any break in service, she then moved to work directly for the Respondent. Her terms and conditions remained the same. Her performance ratings during the period state “shows great commitment to her work, is very punctual and reliable and her attendance is excellent”. The Complainant’s representative submitted that she was contacted outside of working hours and at weekends by the Respondent. She was also expected to work outside of her hours. The Complainant does not need to have a years’ service with the Respondent as she made protected disclosures and was penalised when the Respondent would not let her work her notice and instead paid her in lieu of same.

It was his submission that the Complainant had lodged an explicitly worded grievance regarding internal defamation connected to her compliance report. Despite this no investigation was carried out by the Respondent. The Complaint sought a finding of automatically unfair dismissal under the Protected Disclosure Act or in the alternative, unfair constructive dismissal under the Unfair Dismissals Act.  He stated the Complainant is seeking compensation of up to 5 years remuneration or such other just and equitable sum as the Court considers appropriate.

3 Summary of Respondent’s submission

Mr Kevin Bell BL submitted that the Complaint started direct employment with the Respondent on 17 October 2022 and had voluntarily resigned on 22 May 2022. Her notice period for which she was partially paid expired on 19 June 2022.  Therefore, the 1977 Act cannot by operation of section 2 (1) which requires a minimum of one year’s service, apply to the termination of her employment. Prior to that date she was employed by Colin Mc Nicolas Limited an employment agency who placed her with the Respondent. Her contract with that agency makes it clear that the Respondent was not her employer for that period. The Complainant does not dispute that her salary was paid by the agency prior to 17 October 2022.

 Mr Bell stated that Section 13 of the Act does not apply to this Complainant as at the time of dismissal she was directly employed and not an agency worker. In support of this contention, he opened to the Court Musgrave v PayPal Europe Services Limited (UD1630/2012) and Labour Court case Zajackowski v Hewlett-Packard CDS Ireland Limited (UD18/49) which held that “the provisions of s.13 cease to have application to the Appellant upon cessation of his contract with employment agency”.

In respect of the Complainant’s submission that the 12 months does not apply as she made a protected disclosure, the employment was ended by the employee who in her letter of resignation raised no issues protected or otherwise. This was not a dismissal, and the Complainant does not have the service to bring a case.

4 Complainant’s evidence  

The Complainant in her evidence stated that she carried out the same role for the Respondent from her first day on the job to her last day. She also reported to the same manager. She confirmed that for the first six months she was working via an agency and submitted her hours to the agency, but they were signed off by her manager who worked for the Respondent. In respect to a question from Mr Bell BL under cross examination she confirmed that her first contract shows Colin Mc Nicolas Limited as the employer. She also accepted that in October she stopped having to submit her hours to the agency.

5 Discussion and Decision

 The Complainants clear evidence was that she was employed by an agency for the first six months and only started direct employment with the Respondent in October 2022 and therefore does not have the service required to pursue a case under the Act.

 In respect of the statement by her Representative that she had made a protected disclosure and therefore, the service requirement did not apply, no cogent argument was put forward as to how that could apply in circumstances where it was not disputed that she had resigned her position.

It is clear to the court based on the submissions made, evidence given and case law opened to it, that the Complainant does not have the required service with the Respondent and therefore the Court does not have the jurisdiction to hear her complaint.

The appeal fails. The decision of the Adjudication Officer is affirmed

The Court so Determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
CC	______________________
13 November 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Ceola Cronin, Court Secretary.