Complainant

Respondent

Parties

William  Thomas

Irish Packaging Recycling Unlimited Company Panda Waste Management Solutions

Representatives

Roddy McConnell (BL), instructed by Mr Shehzad Bajwa (Bajwa Solicitors)

Darach MacNamara BL

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-00068487-001

08/01/2025

On their complaint form the Complainant sets out that they were unfairly dismissed by the Respondent and was given no reason for his dismissal and seeks compensation.

The Complainant sets out in their form that they had at least 52 weeks service to allow them seek redress under the Act, having been employed from the 04/07/2023 to 11/07/2024 giving them service of 53 weeks. These dates are disputed by the Respondent.

Having set out that they were dismissed on the 11/07/2024, they submitted their complaint on the  08/01/2025 and assert that this brings them within the statutory time frame for bringing their complaint by three days under the 2015 and 1977 Acts.

The Respondent disputes the foregoing and sets out that  these dates are in error and has made written submissions to the WRC addressing two jurisdictional challenges in an unfair‑dismissal complaint:

(1) whether the complainant had the required one year of continuous service, and

(2) whether the complaint had been filed within the statutory six‑month time limit

To this effect, the Respondent points to sworn evidence of the respondent witnesses that the Complainant did not have the service to avail themselves of the act, nor the annual leave undischarged as set out nor the right to use any leave to extend his term of service. The Respondent sets out that the Complainant was issued a no-fault termination letter effective, 06/06/2024 and paid-in-lieu of notice; meaning that the Complainant had 11 months’ service and could not avail themselves of the act and, further, were one month late in submitting their complaint to the Commission. It is the assertion of the Respondent that the no fault termination with payment of lieu brought the employment to a close on the day it was issued.

 The Complainant set out their substantive case in the following:

They Complainant commenced with the Respondent  on the 04/07 2023 and there were no probationary issues in the 6-month period.

On or about the 22/04 2024, he was informed by HR and Line Manager  that there was an uncorroborated complaint against him with no evidence being tendered. The Complainant contested this claim under a number of headings, all related to fair procedures.

They then received correspondence on the on the 29/04/2024 that no formal complaint been received nor  any form of disciplinary action was in train.  A meeting with the head of HR and a colleague took place on the 05/06/2024 and were  informed by the Respondent  that they had no idea or information of any complaint against him.

After this meeting the Complainant returned to his workplace and was  placed on two weeks paid gardening leave and then paid holiday pay by the company. His position was terminated by letter on the 11/07/2024.  The Complainant sets out that this was a breach of the employment contract which allows for termination in terms of gross misconduct, any alleged gross misconduct wasdenied by the Complainant.

The Complainant has been unable to find work since his dismissal and seeks two years’ salary in compensation plus overtime losses. He sets out his health has suffered as a result of the dismissal and has suffered depression, nervous shock, anxiety and loss of sleep in the past 6 months and his GP has placed him on medications as a result of the dismissal.

Complainant Submission on the Preliminary Objections

The Unfair Dismissals Acts 1977 To 2015

Under section 2(1)(a) of the Unfair Dismissals Act 1977, an employee must normally have at least one year of continuous service to bring an unfair dismissal claim, unless the dismissal is connected with specific protected matters.

The Complainant sets out that they began employment on 04/07/2023 and was summarily dismissed on 20/06/2027 The Respondent did not follow their procedures and did not provide evidence of gross misconduct or serious contractual breach, as required under the contract.

It is the Complainant contention that at the time of dismissal, the Complainant had three weeks of undischarged and unpaid annual leave, plus a paid bank holiday on 03/06/2024.

Additionally, the Complainant argues that, under EU Directive 2003/88 and the Organisation of Working Time Act 1997, workers are entitled to four-weeks’ paid leave as a fundamental employment right. As three weeks remained untaken and unpaid, these leave entitlements should extend the termination date to 11/07/20204, bringing total service to more than one full year.

The Complainant contends that they have not been paid for these days of annual  leave and public holiday and  states that the failure to pay accrued annual leave at termination breached both the employment contract and statutory employment rights.

Therefore, the Complainant submits that—because statutory annual leave formed an inherent part of the employment contract and remained outstanding at the date of dismissal—they meet the one‑year continuous service requirement and are legally entitled to pursue a claim for unfair dismissal under the Unfair Dismissals Acts 1977–2015.

Response to Lack of Substantial Grounds for the Complainants Unfair Dismissal

The Complainant sets out that S6(1) of the Unfair Dismissals Act 1977 provides that a dismissal is deemed unfair unless the employer can show substantial grounds justifying it. The Complainant asserts that no such grounds existed and that the dismissal was therefore unfair.  The Complainant points to the substantive matter where the Complainant set out that they were denied fair procedures in relation to the alleged gross misconduct contrary to best practice under the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146/2000). The Complainant further refers to the letters from HR that there was no formal complaint and that no disciplinary action had been taken.

The Respondent terminated the Complainant’s permanent employment without evidence of (a) gross misconduct, or (b) any serious breach of the employment contract as required under Clause 17 of their employment contract.

The Complainant asserts that the dismissal occurred solely because they asked the Respondent  HR Manager, a question she did not like during the 06/06/2024  meeting and the Respondent failed to comply with the Code of Practice. For these reasons, the Complainant submits that they were unfairly dismissed, in breach of section 6(1) of the Unfair Dismissals Act 1977, as no substantial grounds existed to justify the dismissal.

Response to Argument that the Complaint Is Within Time

The Complainant sets out that s8(2)(b) of the Unfair Dismissals Act 1977 provides that a complaint must normally be brought within six months of the date of dismissal. However, an extension of up to twelve months may be granted where an Adjudication Officer is satisfied that reasonable cause prevented the complaint being lodged within the standard six‑month period.

The Complainant asserts that the effective date of dismissal was 11/07/2024, due to unpaid statutory annual leave that should have extended the contractual relationship beyond the Respondent’s asserted termination date. On that basis, the Complainant says the claim submitted to the WRC on 08/01/2025 falls within the standard six‑month limitation period, and the Workplace Relations Commission has full jurisdiction to hear the complaint.

In the alternative the Complainant submits that if any doubt is raised on  the effective date of dismissal, there exists clear and compelling reasonable cause for an extension of time. On this basis, the complaint filed on 08/01/2025  where reasonable cause is found.

Accordingly, the Complainant maintains that the Commission has full jurisdiction to hear the complaint based on the asserted dismissal date of 11/07/2024, or alternatively; the Complainant satisfies the statutory criteria for a 12‑month extension, and the complaint is valid under Section 8(2)(b) of the Unfair Dismissals Act 1977.

Trade Disputes and Trade Union Membership of the Complainant

Section 6(2)(a) of the Unfair Dismissals Act 1977 provides that a dismissal is deemed unfair where it results wholly or mainly from an employee’s trade union membership and or activities. In such circumstances, the Complainant asserts that the  one‑year service requirement does not apply.

The Complainant asserts that  s6(2)(a) expressly protects workers from dismissal arising from trade union membership or trade union‑related activities and give the Industrial Relations Act, 1990 definition of the same and cites Nolan Transport (Oaklands) v Halligan [1999] 1 IR 128; [1998] ELR 177  as an example of this.

The Complainant sets out that they are a long‑standing member of SIPTU and in the meeting of 05/06/2024, the Complainant sought the assistance of their trade union and the Respondent refused to permit any union representation at this HR meeting, contrary to statutory best practice.

The Complainant asserts that they were abruptly removed from the workplace on 05/06/2024 and summarily dismissed, without process. They contend that the dismissal arose directly from their efforts to secure union representation and from engagement with SIPTU in relation to a workplace dispute. On that basis, they maintain that the dismissal was wholly or mainly linked to trade union membership or trade‑union‑related activity and, therefore, falls within the statutory exemption in s.6(2)(a) of the Unfair Dismissals Act 1977. Accordingly, they submit that the one‑year service requirement does not apply and that the Commission has jurisdiction to hear the unfair dismissal complaint.

The Industrial Relations Act, 1969, Section 13

The Complainant argues that section 13(2) of the Industrial Relations Act 1969 provides that where a trade dispute exists or reasonably anticipated, either party may refer the matter to the Commission for investigation and recommendation. The provision applies to disputes involving workers within the meaning of the IR Acts and specifically covers disputes other than those relating exclusively to pay rates, hours of work, or annual leave. The Complainant submits that their dispute with the Respondent constitutes a trade dispute within the meaning of the IR Acts.

Section 13 as a Protective Mechanism for Workers with Less Than 52 Weeks’ Service

It is submitted that the Industrial Relations Act 1969 predates the Unfair Dismissals Acts 1977–2015, Section 13 serves as a statutory protection for workers who are dismissed before completing 52 weeks’ service and thus would otherwise fall outside the scope of unfair dismissal protection.

This principle was recently applied in the WRC case A Public Service Clerical Worker v A Public Service Employer (WRC‑IR‑SC‑00004178). In that case, the Adjudicator held that a complaint properly brought under Section 13 in the context of a trade dispute could result in substantial redress despite the absence of 52 weeks’ service. The Complainant sets out that there was an award of 20 weeks’ pay and an apology from the Employer. The Complainant therefore argues that Section 13 provides a further exemption from the statutory one‑year service threshold, as they have long been a member of SIPTU and the matter constitutes a trade dispute.

Complaint Time Limits Under the Organisation of Working Time Act 1997

Section 27(5) of the Organisation of Working Time Act 1997 provides that the Commission may extend the six‑month time limit for lodging a complaint by up to 12 months where the delay was due to reasonable cause. The Complainant states that the short delay in filing their complaint was caused by severe depression following the dismissal and difficulties obtaining legal representation while unemployed.

Procedural Fairness — Frizelle v New Ross Credit Union [1997] IEHC 137

The Complainant cites the High Court decision in Frizelle v New Ross Credit Union Ltd [1997] IEHC 137, where the Court set out mandatory principles for a fair disciplinary process in cases of alleged misconduct, including. The Complainant submits that none of these principles were complied with. No allegation of gross misconduct was ever upheld, and therefore the summary dismissal constituted both a breach of contract and an unfair dismissal.

At the hearing on 24/09/2025, the respondent applied for dismissal of the complaint on jurisdictional grounds and set out their substantive case in the following:

No‑Fault Termination and Service

On 06/06/2024, the Complainant received a “No Fault Termination” letter confirming the termination of employment, with payment in lieu of notice. The Complainant did not work on 06/06 nor 07/06 but was paid for both days. Payroll documentation and roster sheets were made available  to demonstrate that all-holiday entitlements and two weeks’ pay in lieu of notice were included in the Complainant’s final pay.

The Respondent noted that the Complainant’s representative alleged three weeks of owed holiday pay, but the Respondent argued that this claim was unsupported and directly contradicted by the documentary evidence.

Industrial Relations Act Argument

The respondent submitted that there is no provision of the 1969 Act that removes the one‑year service requirement for unfair dismissal complaints within that act. Further, that there was no evidence that the complainant was a union member but goes onto argue that point was irrelevant because no exemption exists, regardless.

The complainant’s argument that the matter constituted a “trade dispute” under the 1969 Act is irrelevant because the complaint before the WRC was not a 1969 Act claim.

Section 6  of the Unfair Dismissal Act 1977

Section 6(2)(a) of the Unfair Dismissals Act, cited by the complainant, does not provide any exemption from the service requirement; it simply provides that dismissals related to union membership/activities are deemed unfair. The case under consideration is that the termination was a no‑fault dismissal, not a misconduct‑related one allowing the Respondent to terminate the contract and pay in lieu for any remaining obligations.

Reckonability of Untaken Annual Leave

The respondent submitted that the rules for assessing reckonable service are set out in the First Schedule to the Minimum Notice and Terms of Employment Act 1973 (applied via section 2(4) of the 1977 Act). These rules do not allow untaken annual leave to be counted as service.

Relevant authorities, including Maher v B\&I Line and BDO v Stynes, confirm that untaken holiday entitlements cannot extend service for the purpose of meeting the one‑year requirement and even if such an argument were permissible, the evidence was that all holiday entitlements had been paid.

The respondent further notes that the complainant’s pro‑rata leave entitlement up to June 2024 was approximately nine days—not the three weeks claimed.

Attempt to Extend the Six‑Month Time Limit

The complainant attempted post-hearing to argue for an extension of the six‑month filing deadline on unspecified health grounds.

The Respondent submits that no evidence had been provided to justify an extension and the point was not raised at the hearing despite the opportunity to do so. The Respondent therefore had no chance to challenge or cross‑examine on this issue. In any event, this issue was secondary because the complainant lacked the required one year of service.

Respondent’s Conclusion

The respondent’s position was that the complaint should be dismissed because:

• the complainant did not have one year of service,
• the complaint was submitted outside the six‑month statutory window, and no evidential basis existed for any exception to either requirement

Following the challenge by the Respondent to my jurisdiction to hear the complaint, I directed the parties to make further submissions to me on the issues of (a) service to bring a complaint under the 1977 Act and (b) the argument of the Respondent that the matter is statute-barred. I also requested a full explanation of the Complainant argument that additional rights accursed under the Industrial Relations Acts, 1969 to allow the complaint to be brought without the completion of 52 weeks service. The Complainant went beyond what I requested, and I have addressed some of those additional issues here in addition to the preliminary matters.

The Complainant sets out two significant factors in their complaint form that required further submissions. Firstly, that they had 53 weeks service to allow them the benefit of redress under the 1977 act by dint of service.

The second is that they were dismissed on the 11/07/2024, they submitted their complaint on the  08/01/2025, bringing them within the statutory time frame for bringing their complaint by three days under the 2015 and 1977 Acts.

A further submission arose from the Complainant Representative that by virtue of s13 of the Industrial Relations Act and their longstanding membership of SIPTU they had an entitlement to waive the 52 weeks service.

The Respondent rejected all of the arguments in full and provided sworn evidence to contradict these at the hearing and has referred to the same in their following submission.

The 24/09/2025 hearing was adjourned to allow for written submissions on these matters to ensure full and fair procedures to the Complainant to make their case and for the Respondent to reply. I put the parties on notice that if the challenge, by the Respondent, to my jurisdiction was well founded that I would publish my decision and if I had further reservations, I would have the hearing reconvened.

Summary and Conclusions of the Submission on the Preliminary Objections

Annual Leave &  Service

Complaint Case

The Complainant sets out that there were three weeks of undischarged annual leave untaken and unpaid on the termination, plus a bank holiday on the 03/06/2024. The Complainant sets out that this extends the service of the Complainant to bring them the service they require.  The Complainant seeks to rely on EU Directive 2003/88 and the Organisation of Working Time Act 1997. It is the argument of the Complainant that this extends their service to bring them past 52 weeks.

Respondent Case

The Respondent submits that untaken annual leave cannot be added to the dismissal date to extend service for the purposes of meeting the 12‑month requirement under the Unfair Dismissals Act 1977. Section 2(4) requires service to be calculated using the First Schedule to the Minimum Notice and Terms of Employment Act 1973, which contains no provision for counting untaken leave as service. This Respondent relies upon Maher v B & I Line and the Labour Court decision in BDO v Stynes, where attempts to add holiday entitlement to reach the qualifying service threshold were rejected. It is further submitted that, even if such an approach were permissible, there is no evidence that the complainant had unpaid annual leave at termination.

The Respondent’s sworn evidence at the hearing was that all holiday entitlements were paid in the final payslip and this was not challenged. The absence of any complaint under the Organisation of Working Time Act is consistent with this. The respondent also contends that the complainant’s calculation of accrued leave is incorrect, as the pro‑rata entitlement would have been approximately nine days, not fifteen days.

Findings and conclusion

The Labour Court in BDO v Stynes (UDD1947) held that:

“…the Act of 1973 makes no provision for calculation of untaken holidays as service…”.

Similarly, Maher v B&I Line confirms that annual leave cannot be used to artificially extend service. Annual leave exists because of service; it is not itself service. Accepting the Complainant’s argument would undermine statutory thresholds and defeat the purpose of fixed qualifying periods under any number of Acts. Public Holidays are not directly addressed, but the earning of a public holiday mirrors the earning of annual leave and I believe should be regarded similarly as they both require a minimum amount of service to qualify for.

Conclusion: Annual leave cannot extend the Complainant’s service. The Complainant does not meet the 52‑week threshold and I can find no jurisdiction  on this basis.

Exemption from One‑Year Service Requirement

Complainant Case

The Complainant sets out that under s6(2)(a) of the Unfair Dismissals Act 1977 provides a specific exemption from the one‑year continuous service requirement where a dismissal results wholly or mainly from a worker’s trade union membership, proposal to join a union, or engagement in trade union activities outside working hours (or within working hours where permitted by contract). In such cases, a dismissal is deemed unfair regardless of length of service.

The statutory wording outlines that a dismissal is unfair if it results wholly or mainly from employee’s membership of a trade union; employee’s proposal that they or another person become a trade union member; employee’s engagement in trade union activity permitted under the employment contract.

The Complainant cites the Industrial Relations Act 1990 and Nolan Transport (Oaklands) v Halligan [1999] 1 IR 128; [1998] ELR 177 to define a “trade dispute” and contend that the current matter is a trade dispute.

The Complainant argues they are a long‑standing SIPTU member and were denied union representation at the meeting on 05/06/2025, after which they were removed from the premises and summarily dismissed. They contend the dismissal arose wholly or mainly from issues linked to union representation. On this basis, they submit that the dismissal resulted from trade union membership or activity and, under s.6(2)(a) of the Unfair Dismissals Act 1977, the one‑year service requirement does not apply, giving the Commission jurisdiction to hear the complaint.

Respondent Case

The respondent submits that no provision of the Industrial Relations Act 1969—or any other legislation—removes the one‑year service requirement under the Unfair Dismissals Act 1977.

As such, the complainant cannot rely on a non‑existent exemption, and in any event, no evidence was presented to establish trade union membership. The respondent further argues that the 1969 Act has no relevance to this complaint, as the WRC is dealing solely with a claim under the 1977 Act, whose qualifying‑service rules remain unchanged. The respondent also rejects the complainant’s reliance on s.6(2)(a), noting that it does not create a service exemption and that the dismissal in question was a no‑fault termination, not one connected to trade union activity. Finally, the respondent states that the complainant was not dismissed for misconduct, but pursuant to a contractual right to terminate  on a no-fault basis with payment-in-lieu of notice accepted by the Complainant.

Findings and Conclusions

This was the first time the Complainant attempted to rely on union membership to waive the service requirement. At the hearing they made submission on  the 1969 Act and that it allowed less than 52 weeks; the trade union membership argument has been introduced at a very late stage.

While section 6(2)(a) does provide protection for dismissals related to trade union activity, it does not remove the need to establish service, unless the Complainant can show that the dismissal was wholly or mainly due to union activity. The burden lies firmly on the Complainant for this assertion. In addressing this, it is evident that no evidence was provided of membership, union activity, or any nexus linking these matters to the dismissal. There is no prima facie case to support a union‑related dismissal. No element of the Complainant’s or their representative’s submissions provides a credible foundation for waiving the statutory service requirement on the basis that the dismissal was based wholly or mainly on trade union activity or membership.

Accordingly, there is no basis to waive the service requirement under section 6(2)(a). I can find no basis in this argument to disapply the 52‑week service requirement to establish my jurisdiction under this heading.

The Industrial Relations Act, 1969

Complainant Case

The complainant submits that their dispute with the respondent amounts to a trade dispute within the meaning of section 13(2) of the Industrial Relations Act 1969, which allows either party to refer such disputes to the Commission for investigation and recommendation.

They argue that section 13 operates as a protective mechanism for workers with less than 52-weeks’ service, predating the Unfair Dismissals Acts,1977; offering a route to redress where unfair dismissal legislation does not apply. Reliance is placed on what is described as a WRC decision;  A Public Service Clerical Worker v A Public Service Employer, WRC IR SC 00004178, in which compensation was awarded under a section 13 referral despite the absence of the statutory service requirement. On this basis, the complainant contends that section 13 provides an alternative exemption from the one‑year service threshold, given their long‑standing SIPTU membership and the existence of a trade dispute.

Respondents Case

The respondent submits that no provision of the Industrial Relations Act 1969or any other legislation removes the one‑year service requirement under the Unfair Dismissals Act 1977. They contend that the complainant cannot rely on a non‑existent exemption and, in any case, no evidence was presented to show trade union membership.

The respondent further argues that any reliance on the 1969 Act is misplaced, as the WRC is dealing solely with a complaint under the 1977 Act, whose qualifying‑service rules remain binding. They also argue  that section 6(2)(a) does not create a service exemption and submit that the dismissal was a no‑fault contractual termination, not one connected to trade union activity or gross misconduct. Accordingly, the respondent maintains that the complaint falls outside the Commission’s jurisdiction.

Findings and Conclusion

The case cited IR SC 00004178, was a Section 13 dispute under the Industrial Relations Act 1969. This statutory framework is not applicable here.  A party cannot pursue a claim simultaneously under the 1977 and 1969 Acts. The 1969 Act provides non‑binding recommendations only and has no interaction with statutory rights under the 1977 Act. Such non-binding recommendations have no legal effect are dependant entirely upon the goodwill of the parties to accept the same.

The Respondent was never placed on notice of a Section 13 referral, none was made and, if it had, they would have then had the right to object to such a hearing under that Act.

I have to conclude that the 1969 Act has no relevance to the issues before me under the 1977 Act.

Argument on the Extension of Time.

Complainant Case

In a new argument not previously advanced, the Complainant relies on s.27(5) of the Organisation of Working Time Act 1997, arguing that illness and difficulty obtaining representation constitute reasonable cause for delay.

Respondent Case

The Respondent sets that the Complainant is attempting to introduce a new argument seeking an enlargement of time due to unspecified health concerns previously unraised, no evidence furnished and it is moot. Regardless of the time frame, the Respondent argues the Complainant does not have the service in any event.

Findings and Conclusions

The argument for reasonable cause was not previously raised. However, the Labour Court’s test in Cementation Skanska v Carroll requires the Complainant to show reasons that both explain and excuse the delay. Ill‑health or difficulty obtaining representation has consistently been rejected by both the Labour Court and the WRC as constituting reasonable cause, absent compelling evidence. None has been provided.

On the basis of the submissions put to me, I am not satisfied that reasonable cause exists to extend time.

For the reasons set out above, I find  that I have no jurisdiction to hear this complaint, the Complainant lacking the  required service to avail of redress under the Act and find that the complaint is statute barred.

statutory service computation, Trade union dismissal exemption, Jurisdiction challenge,