Complainant

Respondent

Parties

Mr Darren Mulvaney

H. Shiels Limited

Representatives

Mr Brian Nolan Connect Trade Union

Mr Joe Bolger ESA Consultants

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-00065013-001

26/07/2024

This matter came before the Workplace Relations Commission dated 26/07/2024 as a complaint submitted under section 8 of the Unfair Dismissals Act, 1977 claiming unfair dismissal.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 03/03/2025. 

The Complainant at all material times was employed as an apprentice with the Respondent. The Complainant worked 39 hours per week for which he was paid €663.39 gross weekly.  The Complainant commenced employment with the Respondent on 24/02/2020 which was the date of commencement of his trial period in order to establish if the Complainant was a suitable candidate for an apprenticeship with the Respondent company.  The employment terminated by reason of dismissal on 29/06/2024. 

The Respondent is a leading electrical contracting firm based in Dublin. 

Both parties filed helpful written submissions with supporting documentation in advance of hearing for which I am grateful.    

CA-00065013-001

Overview of Complainant’s written submission

The Complainant commenced employment with the Respondent on 24 February 2020.  He was registered with SOLAS in the Statutory Apprenticeship Programme on 29 June 2020 as an Apprentice Electrician.  The Complainant was dismissed by the Respondent on 29 June 2024 with the Respondent citing “the absolute right to end the working relationship within the four weeks of the conclusion of the 208 weeks.” 

The Complainant submits both he and the Respondent are obliged to be bound by the Code of Practice issued by SOLAS and that any contract of employment issued in respect of said employment must reflect these obligations. 

The Complainant submits clause B of section 8 states that an employer must “notify their local ETB within two weeks of an apprentice commencing employment.  Within two weeks of commencing employment the employer must submit to the ETB an application for the registration of the apprentice as a statutory apprenticeship.”

The Complainant submits the apprenticeship is comprised of four on-the-job phases and three off-the-job phases to be completed over a minimum period of 208 weeks/4 years.  The Complainant submits that in reality this apprenticeship will be well in excess of the 208 weeks in some cases entering a fifth and sixth year.

The Complainant submits that having entered Phase 2 (off-the-job) he encountered some difficulty with exams which prevented his apprenticeship from progressing to Phase 3. 

The Complainant submits he was assured by the Respondent when a discussion took place after the exam failure was highlighted as an issue that his employment would continue regardless. 

The Complainant submits that while discussions did take place between the Complainant and the Respondent Apprenticeship Advisor there was no action, instruction or ultimatum put to the Complainant regarding completing the apprenticeship and he submits he continued working without issue until such time as he was issued with notice of intention to terminate his employment. 

The Complainant submits the Statutory Apprenticeship is outlined as a minimum of 208 weeks and further submits this timeframe is not a prescriptive period and will in most cases take longer.  The Complainant submits that if the Respondent had a difficulty with his apprenticeship they had ample opportunity to deal with the issues.  The Complainant submits that had the Respondent issued an instruction at any time that he complete the apprenticeship as contractually committed then that would have been a reasonable instruction but they chose not to do so.

The Complainant submits that for reasons known only to the Respondent a change of company position led to their mistaken belief that a reference to 208 weeks as being the predetermined completion date of any apprenticeship somehow justified a decision to terminate his employment.

The Complainant submits this was not considered a redundancy; this was an opportunist attempt to dismiss a worker without regard for his statutory entitlements by misquoting the Statutory Apprenticeship structures and the Code of Practice. 

The Complainant submits that while there is an obligation on the apprentice to carry out contractual obligations and to observe the Code of Practice it is the employer who has the strength or power to ensure they do so.  The Complainant submits if an employer believes an employee / apprentice is not fulfilling their contractual obligations they have every right to investigate the matter and to enter into a disciplinary process, if necessary, that may lead to a disciplinary outcome up to and including dismissal.  The Complainant submits the Respondent did not exhaust any procedure, did not issue any ultimatum, did not issue a final warning in relation to completing the apprenticeship and did not afford the Complainant any avenue of appeal. 

The Complainant submits redress is being sought in any of the three available forms. 

Summary of direct evidence of Complainant on affirmation

The Complainant submits he had a difficulty with Phase 2 and that the studying / exams just didn’t come together for him it just wasn’t happening.  The Complainant submits he met with Respondent off-site and they had a conversation and he submits he was told to just keep going as general operative / electrician’s mate and to keep his head down and keep going.  The Complainant submits he was paid at Phase 3 apprentice rate and he asked to see a General Operative contract which was provided and he was told there would be a 5 day window to look at it but it was late and it ended up being a 3 day window and he did not receive the 4 year rate on the anniversary of his registration.  The Complainant submits that he if had to return to Phase 2 and attempt studying / exams he would have to support himself as he had used up 17 weeks of that Phase already. 

Summary of cross-examination of Complainant

The Complainant submits he got a stint of work between October and December and he is actively seeking work.  It is put to the Complainant that we are in a period of full employment which he accepts.

The Complainant is asked if he recalls a conversation that took place between himself and Mr Philip Whelan and is asked if he received correspondence from Mr Whelan following that conversation to which the Complainant responds that he (Mr Whelan) was putting pressure on him.  It is put to the Complainant that he had never queried his rate of pay even though he was undertaking the same work and his apprenticeship had come to an end to which the Complainant responds he just trucked on and kept his head down.   The Complainant submits that SOLAS had made him aware of the financial impact of trying to get back to Phase 2.  It is put to the Complainant that the Respondent engaged with him when the 208 weeks were up and he said he tried to engage with them as his role had changed but he was being let go as an apprentice.  The Complainant submits he did not know why he was being let go as an apprentice and he was under contract as an apprentice.  It is put to the Complainant that at all material times he was still operating under his apprenticeship contract at which he was successful up to a point and did not return to Phase 2 due to the financial impact and the Respondent wrote to him when the 208 weeks were up and that he never queried his role or his pay in all that time to which the Complainant responds he didn’t think he needed to challenge it. 

Summary of closing submission of Complainant

The Complainant representative submits the Minimum Wage was flouted and the Respondent cannot circumvent the start date.  The Complainant representative submits this matter has to be looked at in the context of the Industrial Training Act 1967. 

The Complainant representative submits the Respondent can’t cherry pick and its still a wrong dismissal.

CA-00065013-001

Overview of Respondent’s written submission

The Respondent submits the expiry of the apprenticeship on 14 June 2024 in accordance with its terms constitutes a lawful termination of the contract in compliance with statutory provisions.  The Respondent submits the Complainant entered into an apprenticeship agreement with the Respondent which clearly stipulates a completion period of 208 weeks.  The Respondent submits the Complainant was informed from the commencement of the apprenticeship that the failure to complete the apprenticeship within the 208 weeks would not be grounds to avoid the normal termination that applied to trainees.  The Respondent submits this condition was part of the written and verbal agreements ensuring the Complainant was fully aware of the requirements of his apprenticeship and outcome at its expiry.

The Respondent submits the Complainant did not successfully complete the apprenticeship within the 208-week period, thereby failing to fulfil the essential terms of the apprenticeship contract.

The Respondent maintains the Complainant remained employed as an apprentice until the termination of the contract and he was employed, trained and compensated as an apprentice throughout the duration of that contract.  The Respondent submits a conversation did take place where the Complainant expressed dissatisfaction with his role and explored the option of resigning or transitioning to a general operative position but no formal resignation occurred and the Complainant continued to operate as an apprentice.  The Respondent submits that while it is acknowledged that the Complainant may not have fully applied himself to the apprenticeship programme, this does not alter the legal status of his employment contract as an apprenticeship agreement. 

Summary of direct evidence of Respondent witness Mr Philip Whelan (hereafter PW) on oath

PW is the Electrical Contracts Director and he is with the Respondent company for 30 years.  The witness submits he deals with about 4-5 apprentices per year at different stages of the phases.  PW submits the apprentices go through the Phases and some do well on the site works but the books are harder for some.  If somebody is struggling they repeat and there are up to 3 repeats.  The witness submits SOLAS will notify them if someone has failed and they offer help to them grinds if necessary.  The witness submits the Complainant failed the first one and he emailed him to try again and Complainant replied that it was in hand.  The witness submits on 08 August 2022 the Complainant was asked if he’d like to become a General Operative and there was no confirmation received that he would like to take the GO offer.  The witness submits the Complainant was undertaking apprentice work in Powerscourt and the exams did not go well.

The witness submits the Complainant was written to on 21 April 2023 further to a telephone conversation on 04 April in regard to a request to submit a resignation letter terminating his apprenticeship as it was their understanding he was not going to go back to repeat exams.  The witness refers to the letter to the Complainant of 21 April 2023 in which he was asked if he wanted to continue with the apprenticeship or of if he would consider becoming a General Operative and he enclosed a General Operative Contract for the Complainant to study in detail and setting out the pay rate which would be €18.99 per hour as this was the General Operative  S.E.O. rate.   

Summary of cross-examination of PW

PW confirms the apprenticeship commenced in June of 2020.  The Complainant representative refers to Clause 8 of SOLAS Code of Practice which provides as follows:

“Employers must comply with the statutory obligations imposed by the Industrial Relations Training Act, 1967 (as amended), and any Apprenticeship Rules (which may apply in relation to the relevant Apprenticeship Programme from time to time).  Employers are required to:

(a)    Apply to SOLAS through their local ETB, for approval to train apprentices for a specific statutory apprenticeship.

(b)   Notify their local ETB within two weeks of an apprentice commencing employment.  Within two weeks of an apprentice commencing employment the employer must submit to the ETB an application for the registration of the apprentice as a statutory apprentice.”

It is put to the witness that the Complainant started in February 2020 and he was terminated in June 2024 to which the witness responds that when they start they get a 3 month trial first.  The Complainant representative submits he should have been paid a different rate but that for those months he was paid 1st Year Apprentice rate which puts the argument for 208 weeks in the bin.  The witness is asked if it is fair to say the Complainant never moved to be a GO to which he responds the Complainant continued to be an apprentice.  The witness is asked would he have seen it as reasonable that the Complainant did not respond when they kept asking him if he was going to repeat and questioned as to why they didn’t dismiss him for not doing the exams. 

Summary of direct evidence of Respondent witness Mr John Sexton (hereafter JS) on affirmation

JS outlines that he is the Financial Director and Administrator of Apprentices in the Respondent company and he has been with the company for 25 years. 

When asked if the Respondent company always relies on the 208 weeks the witness submits they have sometimes gone beyond that and references two apprentices that were on referral from Phase 4 and he had spoken to SOLAS about their cases.  The witness submits the 208 weeks were up and they were encouraged to get grinds in the science subjects in which there is often a difficulty.  The witness submits candidates for apprenticeship are hired initially for a 3 month trial to give both sides the opportunity to assess suitability.  The witness submits that has now been changed to an 8 week trial.  JS submits the registration date with SOLAS is used as the starting point and the clock starts ticking they day they are registered.  The witness submits Phase 2 is a twenty week course and the Complainant withdrew from Phase 2after 17 weeks as indicated on the document exhibited from the Senior Training Advisor. 

The witness submits the Senior Training Advisor said he would reach out to the Complainant but the trail went cold after that.  It is submitted by the witness that if the Complainant went back to Phase 2 to resit he would only be paid for 3 weeks as he had already been paid for 17 out of the 20. 

The witness submits the Complainant would have been aware that his employment would come to an end in June 2024 and there had been no indication from the Complainant that he intended to come back to SOLAS.

Summary of cross-examination of Respondent witness JS

The witness submits the Complainant had verbally declined to do the General Operative job and he had made some indications he might come back to Phase 2 but this went cold.  The witness submits the 8 week trial is an industry norm and they always try to be fair and the Respondent company has a good record with apprenticeships.  The witness submits they give apprentices the 208 weeks from the date they sign up. 

CA-00065013-001

In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.  I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and surrounding circumstances.  The role of the Adjudication Officer is to decide the case before him/her, resolving conflicts in evidence according to the direct evidence presented at hearing.  Where the evidence of the parties differs greatly and cannot be reconciled findings are made on the balance of probabilities.  In my decision-making role I am constrained both by statute and by precedent. 

PRELIMINARY ISSUE – Applicability of the Unfair Dismissals Act 1977-2015

The Law

Section 4 of the Unfair Dismissals Acts states:

"Except in so far as any provision of this Act otherwise provides, this Act shall not apply in relation to the dismissal of a person who is or was employed under a statutory apprenticeship if the dismissal takes place within 6 months after the commencement of the apprenticeship or within 1 month after the completion of the apprenticeship."

Prior to hearing the substantive matter, the Respondent submitted that I did not have jurisdiction to hear the complaint given that the alleged dismissal arose solely from the expiry of the apprenticeship agreement. 

I note this preliminary point raises a very discrete and net issue on which the determination of this case depends namely the date of the commencement of the apprenticeship. 

The Complainant submits the apprenticeship commenced as soon as he commenced employment with the Respondent namely 24/02/2020.    

The Respondent submits the apprenticeship commenced on the date the Complainant registered with SOLAS namely 29/06/2020. 

I note the Respondent submits the terms of the apprenticeship comprise a fixed period of 208 weeks from the date of the SOLAS registration.

Conversely, I note the Complainant submits the apprenticeship commenced immediately upon hiring as the Complainant was being paid as an apprentice from day one.

I have carefully considered the respective position of the parties both of whom were equally persuasive in their submissions on the matter of this discrete determinative issue in contention. 

Notwithstanding, I am guided by the SOLAS Apprenticeship Code of Practice for Employers and Apprentices where it is provided as follows in Clause 5:

“The start date of a statutory apprenticeship is the date the apprentice registration is approved by SOLAS”. 

I note the Complainant was registered with SOLAS on 29/06/2020.  I note the terms of the Complainant’s apprenticeship set out a duration of 208 weeks commencing from the date of registration with SOLAS.   

I note the alleged dismissal took place on 29/06/2024. 

I note the statutory exemption from the application of the Unfair Dismissals Acts to the dismissal of apprentices provided for in section 4 of the Unfair Dismissals Acts and set out above.   

I am satisfied section 4 does not provide that it only applies where an employee is dismissed within one month of a successful completion of an apprenticeship [emphasis added].  I am satisfied that the definition of “completion” refers to completion, whether successful or not, in a temporal sense. 

I find that as the alleged dismissal fell within 1 month of the completion of the apprenticeship, I do not have jurisdiction to hear the complaint. 

CA-00065013-001

For the reasons set out above I do not have jurisdiction to hear this complaint. 

Apprenticeship; commencement date; completion date;