Complainant

Respondent

Parties

Egon Felipe  Aquino De Souza

Iveagh Fitness Limited

Representatives

Self-represented

Jon Griffin

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-00045918-001

01/09/2021

The complainant stated on the complaint form that he was employed as a fitness instructor with the respondent company from 02 September 2020 to 14 June 2021.  The complainant resigned alleging he had to leave due to the conduct of his employer when he was exercising his right to Force Majeure leave.  The complainant sought compensation as redress for unfair dismissal.

The respondent’s position is that the complainant was employed for eight weeks after a period of work experience.  The complainant resigned, he was not dismissed.  The complainant did not make an application for Force Majeure leave, and no such application was refused by the respondent.  The complainant did not have twelve months’ continuous service when he resigned.

The respondent company operates a health and fitness club.  The complainant initially sought work experience with the respondent.  Having completed his exams, the complainant was employed by the respondent.  He worked for eight weeks before resigning on 14 June 2021.

Mr Griffin in his evidence stated that the respondent operated strict health and safety rules.  Due to Covid restrictions the respondent had to be strict about the implementation of health and safety regulations.  The facilities were for club members and staff were not permitted to use the facilities without permission.  Mr Griffin stated he believed the complainant had used the pool without permission and without wearing a swimming hat.  As a result, he had contacted the complainant by text message to tell him not to repeat this breach.  The complainant objected to being contacted about this breach by text message.  There followed an exchange of messages.  The complainant resigned.

Mr Griffin stated the complainant did not apply for Force Majeure leave and he was not refused such leave.   It was the respondent’s position that the complainant had resigned and that he had less than twelve months continuous service at the time of resignation.

Ms Taylor in her evidence stated that the rules applied to all staff and that personal training was not permitted while on shift.

The complainant submitted a complaint alleging he was exercising his right to Force Majeure leave and due to the respondent’s conduct, he had to leave his job.

The complainant in his evidence stated he received a text message, after he left work, about use of the pool.  He stated he was on his break when he used the pool with a friend.  His friend posted a photograph on his social media page of them using the pool.  The complainant stated staff were allowed to use the pool during their break time.

The complainant objected to being contacted by message outside work hours.  He stated he told Mr Griffin to only contact him in person during work hours.  He stated that he considered Mr Griffin was not respecting him.  He also stated that some staff were treated differently.  The complainant stated he thought there was some different treatment of people from Brazil.  He stated that he contacted the manager, Raphael, and told him he could not come back to work in that atmosphere.

In reply to a question from the Adjudication Officer the complainant stated that he had not applied for Force Majeure leave and he had not been refused such leave.

CA-00045918-001

The complainant submitted a complaint of unfair dismissal alleging he had to leave due to the conduct of his employer when he was exercising his right to Force Majeure leave.  It is undisputed that the complainant did not have one years’ continuous service with the respondent at the date he resigned.

Legislation

The Unfair Dismissals legislation, with some exceptions, requires an employee who submits a complaint of unfair dismissed to have one years’ continuous service with the employer at the date of dismissal to come within the protection of the Act. 

2.—(1)Except in so far as any provision of this Act otherwise provides] this Act shall not apply in relation to any of the following persons: (a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him ,

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.

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(a – d) …

(dd)the exercise or proposed exercise by the employee of the right to parental leave, force majeure leave, leave for medical care purposes, domestic violence leave or a request for a flexible working arrangement under and in accordance with the Parental Leave Act, 1998, or carer’s leave under and in accordance with the Carer’s Leave Act, 2001,

(2B) Sections 3 and 4 do not apply to a case falling within subsection (2) (dd) and, for the purpose of that paragraph, "employee" includes a person who would otherwise be excluded from this Act by paragraph (a), (c), (f) or (g) of section 2(1).

The amendments to the Unfair Dismissals Act, 1977 permit an employee who has less than one years’ service to bring a complaint of unfair dismissal, arising from an employee exercising their right to force majeure leave.  In this case the complainant did not have one years’ service.  The complainant submitted a complaint of unfair dismissal on the ground he was exercising his right to Force Majeure leave, in order to bring his complaint within the scope of the Act. 

The complainant, in his evidence, stated that he had not made an application for Force Majeure leave and had not been denied such leave.  Therefore, based on the evidence presented, I find that at the date of termination of his employment the complainant did not have the required service or come within any of the exceptions of the service requirement for his claim to come within the scope of the Unfair Dismissals Act, as amended.

In his evidence the complainant referred to believing he was being treated differently to other employees.  There was no claim of any different treatment compared to other employees within the complaint.

Conclusion

This complaint does not come within the protection of the Unfair Dismissals Act, as amended, as the complainant did not have one years’ continuous service with the respondent at the date of resignation.  The complainant is not covered by the service exception for exercising his right to Force Majeure leave as he did not apply for such leave and was not refused such leave.  In those circumstances I decide I do not have jurisdiction to adjudicate on the substantive issue of this complaint.

CA-00045918

Complaint submitted pursuant to Section 8 of the Unfair Dismissals Acts, as amended.

This complaint does not come within the protection of the Unfair Dismissals Act, as amended, as the complainant did not have the requisite one years’ continuous service with the respondent at the date he resigned and terminated his employment. 

The complainant does not have the service exception available for employees exercising their right to Force Majeure leave as he did not apply for such leave and was not refused such leave. 

In those circumstances I decide I do not have jurisdiction to inquire into and adjudicate on this complaint as the statutory service requirement has not been met.

Unfair Dismissal

Service Requirement

Force Majeure Leave