UDD2518

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00050999 (CA-00061772-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 19 August 2024 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015.

A Labour Court hearing took place on 29 May 2025.

The following is the Decision of the Court:

DECISION:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 19 August 2024 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015.

A Labour Court hearing took place on 29 May 2025.

The following is the Decision of the Court:

DECISION

This is an appeal by Victor Ogiem Udia of a decision by an Adjudicator Officer (ADJ-00050999, CA-00061772-001, dated 14 August 2024) in relation to a complaint taken against Tesco Ireland under the Unfair Dismissals Act 1977 (“the Act”).  The Adjudication Officer held that the complaint was lodged outside the time allowed under the Act.

A Notice of Appeal was received by the Labour Court on 19 August 2024 and a hearing conducted on 29 May 2025 in Cork. This case is linked to UDD2519.

In this decision, Victor Ogiem Udia is referred to as “the Complainant” and Tesco Ireland is referred to as “the Respondent”.

Background

The Complainant worked as a security officer at the Respondent’s store in Killarney. He ceased working at the Respondent’s store on 24 February 2024 and contends that he was subsequently unfairly dismissed n 29 December 2024 following a period of lay-off since 27 February 2024.

Ibec, on behalf of the Respondent, raised preliminary matters relating to the Court’s jurisdiction to hear the appeal under the Act. It submits that the Complainant has no locus standi under the Act in circumstances where (i) the incorrect Respondent was cited by the Complainant and (ii) without prejudice to that fact, the complaint is manifestly out of time.

The Court advised the parties that as these preliminary matters address the Court’s jurisdiction to hear the appeal it would hear from the parties on those matters in the first instance. 

Preliminary Matter – Correct Respondent

The Respondent submits that the Complainant lodged initial proceedings under the Act against other named parties, including the store manager at the Respondent’s Store. The Complainant failed to lodge a complaint against “Tesco Ireland Ltd”.  The Respondent party names were amended by the Adjudication Officer at the WRC hearing.

The Respondent submits that the Complainant was never an employee of the Respondent. No contract of employment exists between the Complainant and the Respondent. The Respondent did not dismiss the Complainant.

The Respondent has a managed service contract with a named entity for the provision of services. That named entity employs employees on a permanent basis to provide security services to the Respondent. That entity is not an employment agency.  The Complainant was employed by that entity to provide security services. 

The Complainant accepts that he was employed under a contract of employment by another named entity, however, he contends that the Respondent orchestrated the termination of his employment and carried out an unfair dismissal in contravention of due process and nature justice.

He objects to the Respondent denying liability for his dismissal on what he contends is a technical argument that they were not his “direct employer”.

Preliminary Matter – Time Limits

Without prejudice to the Respondent position that no contract of employment existed between the parties such that the Complainant was entitled to lodge a complaint of unfair dismissal under the Act (which is denied), the Respondent submits that the complaint is manifestly out of time.

The Respondent submits that the Complainant ceased working in the Respondent store on 24 February 2023.  His complaint under the Act was lodged to the WRC on 26 February 2024. The date of termination of employment cited on the WRC complaint form was 24 February 2023, which was over 12 months earlier.

The Complainant accepts that his last day of working in the Respondent store was 24 February 2023. Notwithstanding that fact, he submits that his employment was terminated after a period of lay-off on 29 December 2023, as a direct result of the Respondent’s actions.

Adjournment

The Court adjourned briefly to consider the preliminary matter raised. 

Rule 34 of the Labour Court Rules provides that: -

“The Court may, in its discretion, give a preliminary ruling on any aspect of the case where it is satisfied that time and expense may be saved by the giving of such a ruling and/or where it has the potential to be determinative of the case”.

At the resumed hearing the Court advised the parties that it proposed to adjourn the hearing and decide on the preliminary matters regarding its jurisdiction to hear the appeal. It advised the parties that no decision had yet been made on that matter and that if the Court decided that it had jurisdiction to hear the appeal, a further hearing would be scheduled to consider the substantive appeal. If the Court decided that it had no jurisdiction to hear the complaint, the appeal would found to be statute barred.

Relevant Law

Section 6 of the Act provides that: -

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Deliberations

The purpose of the Unfair Dismissals Act is to provide redress for employees who are unfairly dismissed from their employment.

The Act at section 1 explains the term “dismissal” as: -

“the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee…”.

The terms “employee” and “employer” are defined as follows: -

“employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment...

“employer”, in relation to an employee, means the person by whom the employee is (or, in a case where the employment has ceased, was) employed under a contract of employment ….

The protections provided under the Act apply to an employee as defined under the Act.

The Complainant in this case fully accepts that he was not employed by the Respondent under a contract of employment. He fully accepts that he entered into a contract of employment with another named entity that provided security services to the Respondent.

While the Act at provides that individuals who are supplied by an agency within the meaning of the Employment Agent Act 1971 are deemed to be an “employee” employed under a contract of employment by the third-party user for the purposes of the Unfair Dismissals Act, that is not the case submitted in this case.

The Labour Court’s powers and duties are derived solely from statute. In this case, the Court’s jurisdiction is confined to assessing breaches an employee who has entered into a contract of employment was unfairly dismissed by their employer.

The Court finds that on the undisputed facts presented in this case the Complainant was not an employee of the Respondent.  Accordingly, the Court has no jurisdiction to hear the complaint.

Having regard to the Court’s finding that the Complainant was not employed by the Respondent, there is no necessity for the Court to consider the preliminary matter raised in relation to time limits.

Decision

The Court has no jurisdiction to hear the complaint, and the appeal is not allowed.

The decision of the Adjudication Officer is varied accordingly. 

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
9 June 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.