ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00040355
Parties:
| Complainant | Respondent |
Parties | Marek Herej | Kefron Limited |
Representatives | Self-Represented | Self-Represented |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00051654-001 | 12/07/2022 |
Date of Adjudication Hearing: 18/11/2022
Workplace Relations Commission Adjudication Officer: Brian Dolan
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant commenced employment with the Respondent on 4th July 2022. The Complainant’s employment was extremely brief, with the same being terminated four days later, 8th July 2022.
On 12th July, the Complainant referred the present complaint to the Commission. Herein, he alleged that he had been dismissed due to “a lack of communication with my line manager about being absent”. By response, the Respondent denied this complaint, stating that the Complainant’s employment was terminated in accordance with their probationary policy.
A hearing in relation to this matter was convened for, and finalised on, 18th November 2022. This hearing was conducted 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. No technical issues were experienced by either party in the course of the hearing.
At the outset of the hearing, the Adjudicator raised a preliminary issue as to jurisdiction. As this point is determinative of the proceedings, it will be considered in advance of the substantive complaint. |
Summary of Complainant’s Case as to the Preliminary Point:
At the outset of the hearing, the Adjudicator raised the issue of the Complainant’s service. In particular, it was noted that the Complainant had not accrued the requisite year of service as set out in Section2(1) of the Acts. It was noted that when asked “on what grounds is your complaint based”, on the complaint form, the Complainant answered, “exercising my right to adoptive leave”. Notwithstanding the same, it was further noted that the “complaint specific details” section of the complaint form describes an entirely different set of circumstances and is silent as to any allegation regarding adoptive leave. By response, the Complainant confirmed that his complaint did not relate to adoptive leave. He stated that he selected that option in order to progress along the complaint form. He stated that the complaint as described in the “complaint specific details” section is the essence of his complaint. |
Summary of Respondent’s Case as to the Preliminary Point:
The Respondent submitted that the Complainant did not have jurisdiction to bring the present complaint. Notwithstanding the same, they submitted that they were fully prepared to defend the substantive issue. |
Findings and Conclusions as to the Preliminary Point:
Section 2(1) of the Unfair Dismissals Act provides that, “This Act shall not apply in relation to any of the following persons…(a) an employee…who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him.” Notwithstanding the same, Section 14 of the Unfair Dismissals Act 1993 provides, “Section 2 (1)… of the Principal Act … shall not apply to a person … who is dismissed if the dismissal results wholly or mainly from one or more of the matters referred to in subsection (2) (a) of section 6.” Section 6(2) enumerates a number of instances whereby a dismissal would be deemed to be automatically unfair, including as a result of an employee seeking to exercise their rights under the Parental Leave Act. Regarding the instant case, the Complainant has accepted that the substantive matter does not relate, in any way, to an exercise of his rights under the Parental Leave Act. By further submission, received after the hearing, and on the invitation of the Adjudicator, the Complainant stared that he had no further submission regarding this preliminary issue. Having regard, to the foregoing, I find that the Complainant has not accrued one year of service as required by Section 2 of the Act. In circumstances whereby it is apparent that none of the exemptions enumerated in Section in Section 6(2) apply, I find that the Complainant was not unfairly dismissed within the meaning of the Acts. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I find that the Complainant was not unfairly dismissed within the meaning of the Act. |
Dated: 13-01-2023
Workplace Relations Commission Adjudication Officer: Brian Dolan
Key Words:
One year service, exemptions |