ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001343
Complaint(s)/Dispute(s) for Resolution:
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-00001810-001 | 07/01/2016 |
Date of Adjudication Hearing: 13/04/2016
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
The complainant was employed as a Carer of the Elderly. At the commencement of the Hearing the issue of the Adjudicators jurisdiction to hear the case was raised by the Respondent as a preliminary matter and the complainant was asked to outline her service. The claimant stated she commenced work on October 5th 2014 and ceased employment on October 21st 2015 therefore had the necessary twelve months employment under the Act to proceed with the claim. The complainant gave evidence of jobs she did and people she met as part of her employment prior to October 21st 2014. The complainant had a book which showed she visited a particular client on behalf of the company on October 5th 2014. She also stated she completed some shifts on October 15th 2014. She stated she met the owner of the company at the end of September 2014 and agreed a rate per hour and received a phone call to ask her to start on October 5th 2014. The complainant had a part time job at the time and agreed to start and give the job a try. The complainant stated she meet clients on October 8th and 9th and worked ¾ hours for two weeks. The complainant stated she was pad in cash for this time. |
Respondent’s Submission and Presentation:
The Respondent stated that they wished to contest the complainants service and that as she had less than twelve months service and under section 2 of the Unfair Dismissals Act she did not have the required service to proceed with her claim. The complainant commenced work on November 21st 2014 according to the Respondent. This date was on her P45 and also there is no record of the complainant in the record books for the weeks prior to November 21st 2014. The Respondent provided an email from her Accountant dated December 4th 2014 showing the complainants start date as November 24th 2014.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Issues for Decision:
The parties agreed that I would issue a preliminary decision on my jurisdiction based on the evidence presented regarding service and that either party may appeal this decision on jurisdiction to the Labour Court for determination should they contest my decision. Under Section 2 of the 1977 Unfair Dismissals Act a person taking a claim under the Act must have one years continuous service to take a claim under the Act. This is the initial preliminary issue (and only issue) I will deal with in my decision.
Decision:
The parties gave two different versions of events at the Hearing regarding the start date of the complainant. Neither correspond or are decisive in establishing that the complainant had one years continuous service. It is not possible to establish a start date from the oral evidence provided to me at the Hearing. The responsibility is with the complainant to show she has one years continuous service or the Act specifically excludes her taking a claim under the Act. The two relevant documents that have assisted me in making a decision are the P45 (an official document) and the email dated December 4th 2014 to the Respondent from her Accountant establishing the complainant on payroll stating the start date for the complainant was November 21st 2014. This was created at a time when there was no conflict between the parties and therefore is the one clear decisive document that, I believe, sets out the complainants start date. None of the oral evidence clearly established, to my legal satisfaction, a start date prior to November 21st 2014. The contract of employment is silent on the start date and therefore is of no value in this instance. Having assessed all the circumstances and statements from the parties I am of the view that the complainant has not legally established that she has one years continuous service with the Respondent and therefore I am of the view that I do not have jurisdiction under the Act to proceed to hear her substantive case. In the event of an appeal of this decision and the Court find that the complainant has one years continuous service and I have jurisdiction to hear the case it is agreed by the parties that the substantive issues between the parties would then revert to me for decision.
Dated: 7th July 2016