Complainant

Respondent

Anonymised Parties

A Night Support Worker

Homelessness Service Provider

Representatives

Self-represented 

Peter Dunlea, Peninsula Business Services

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-00068472-001

07/01/2025

The Complainant referred her claim to the Director General of the WRC on 7 January 2025 alleging that she was unfairly dismissed.

The Respondent rejects the claim. The Respondent asserts that the Complainant does not have the service required to bring a claim under the Act.

On 19 November 2025, the Respondent furnished the following written submission.

Preliminary issue

The Complainant has referred a claim under section 8 of the Unfair Dismissals Act 1977 stating that she was unfairly dismissed.

The Respondent submits that the present claim should be dismissed as the Complainant had less than 1 year’s continuous service with the Respondent.

The Respondent refers to the Complainant’s contract of employment which lists the Complainant's start date with the Respondent as 1 August 2023. The Complainant’s original contract was signed on 2 August 2023 by the Complainant.

The Respondent further refers to the Complainant’s letter of dismissal dismissing the Complainant effective immediately on 24 July 2024.

The Respondent refers to section 2 of the 1977 Act wherein it states:

“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”

The Respondent refers to the well-established jurisprudence regarding the date of dismissal. The Respondent refers to the recent case of Fyffes Tropical Ireland Limited v Loui Osan UDD2413 which cited Redmond on Dismissal Law at paragraph [22.63] of the third edition as follows:

“If a contract lays down a notice period, it will technically be a breach of contract to give pay in lieu of notice unless this right is reserved to the employer. If it is, and an employee accepts payment of wages in lieu of notice, the date of dismissal will be the date on which termination takes effect, as the contract will have been determined in accordance with its terms. If there is no right to give pay in lieu of notice in the contract, the EAT will treat the case as a ‘no notice’ one and will add on the contractual or statutory notice, whichever is greater.”

The Respondent refers to the contracts of the Complainant, in particular the line under the notice section at pages 18 and 23 which states the following:

‘We reserve the contractual right to give pay in lieu of all or any part of the above notice by either party. ‘

The Respondent notes that the Complainant was paid a week’s notice in accordance with this provision. As such the date of dismissal for the Complainant was 24 July 2024 and therefore the Complainant had less than a year’s continuous service with the Respondent.

Therefore, the present claim should be dismissed as the Unfair Dismissals Act 1977 does not apply to the Complainant.

On the first day of the adjudication hearing, the Respondent submitted that the Complainant could not work while not Garda vetted. The Respondent noted the difference between an offer of employment and the commencement of employment. The Respondent asserted that even if an interview was a “formality” as alleged by the Complainant, she was not an employed until the job was given to her in August 2023. The Respondent submitted that the Complainant received no pay for what she alleged was the induction.

Submission on the substantive matter

Notwithstanding the preliminary matter, the Respondent submits that the Complainant was dismissed in accordance with the policies and procedures of the Respondent for gross misconduct, namely the failure to follow reasonable management instructions to attend an investigation meeting regarding a serious incident.

The Complainant alleges that she was unfairly dismissed.

The Complainant furnished multiple written submissions, which she acknowledged were prepared with the assistance of artificial intelligence. In her submissions, the Complainant asserted that the Respondent’s actions breached some 13 pieces of national and European legislation. For the purposes of this decision only the submissions and evidence related to the alleged unfair dismissal were considered and are summarised below.

In her submission of 7 January 2025, the Complainant alleged that, as per her appeal of the decision to dismiss:

·        There was a breakdown of communication;

·        The Respondent failed to follow the Code of Practice on Employee Right to Disconnect;

·        She was harassed;

·        No warning of a threat of dismissal or details of alleged complaint made against the Complainant had been given;

·        The Respondent failed to adhere to the purpose of investigation meeting;

·        The Respondent failed to afford natural justice prior making the decision to dismiss.

On 10 January 2025, the Complainant emailed the WRC as follows:

‘I note the matter is listed under the Unfair Dismissal category. However, I do feel there are additional merits which could be included, to mention a few :- Unlawful deduction of wages Unpaid work Failure to meet agreed incremental percentages on wages Failure in duty of care as an employer and service provider Whistle Blowing,’

Correspondence issued to the Complainant on the same day informing her that ‘If you wish to make additional complaints, please submit using the online complaint form which can be found on www.workplacerelations.ie

Any additional complaints received will be associated with this case where possible.’

No additional complaints have been received from the Complainant.

On 13 November 2025, the Complainant furnished 69-page Final Submission with some 31-page submission and with some appendices. 

She alleged that the dismissal was procedurally unfair as there was no formal disciplinary hearing and the investigation was treated as a disciplinary process contrary to S.I. 146/2000 (Code of Practice on Disciplinary Procedures). The Complainant further asserted that no allegations were provided in advance, no evidence was disclosed; and no right to representation was afforded in any meaningful way. The Complainant asserted that the same manager acted as investigator, witness and decision-maker.

The Complainant also asserted that the dismissal was substantively unfair. The Complainant submitted that the Respondent alleged breach of a “Welfare Check Policy”. However, no such policy existed.

The Complainant alleged that she was dismissed while her colleague who was on duty at the time of the incident in question was exonerated.

Regarding the preliminary matter raised by the Respondent, the Complainant submitted as follows.

CONTINUITY OF SERVICE AND QUALIFICATION FOR UNFAIR DISMISSAL

The Complainant was engaged from circa 16 January 2023, working in placement which for all intents and purposes is “employment” and afforded the same rights as a contractual full-time employee and then as relief and operational capacities.

She was processed for the relief worker role between May and July 2023.

On 14 July 2023, she attended a formal induction, having received an offer from an authorised representative of the Respondent. This induction involved familiarisation with residents, review of policies, a site tour, details of duties and expectations— constituting the essential elements of a binding contract: offer, acceptance, and consideration (see Mears v Safecar Security Ltd [1981] IRLR 182).

Her dismissal letter paid one week’s notice, which—by operation of law—extends her termination date to 1 August 2024, crossing the threshold for one year’s continuous service under the Unfair Dismissals Acts 1977–2015.

The Complainant submitted that continuous employment includes any period of training or induction required by the employer (see Croke v Waterford Crystal ADJ-00001517).

Summary of the Complainant’s evidence and cross-examination

Regarding the preliminary matter of her continuous service with the Respondent, on the first day of the hearing, the Complainant submitted that she commenced a student placement with the Respondent on 16 January 2023. She did the same job as an employee and worked full-time. The Complainant submitted that her placement ceased on 10 May 2023. The Complainant confirmed that the placement was unpaid, she did not receive any payment from the Respondent, and she attended theory classes on Tuesdays.

In cross-examination, the Complainant agreed that she could not work without being Garda vetted. She also confirmed that she did not question the starting date in her contract being 1 August 2023.

The Complainant said that she applied for a role with the Respondent on 10 May 2023, immediately after her placement ended. She said that she was told that it was a “formality” for her to get a job with the Respondent. On 14 July 2023 she was in contact with the Respondent’s manager. She said that on that date she attended “induction”. The Complainant said that on Friday 21 July 2023, she attended a job interview. She did not dispute that she signed a contract of employment on 2 August 2023. The Complainant also did not dispute that she did not perform any work before 2 August 2023, and she submitted that between July and August 2023 she was awaiting Garda vetting.

It was put to the Complainant the so-called “induction” appears to have been someone going through the possible job description with her. While initially, the Complainant could not recall if she was paid for the “induction” time, she later recalled that she was not paid at all for the period between January and August 2023.

The Complainant was given the opportunity to furnish a supplemental submission addressing the preliminary matter. No written submission was received from the Complainant.

On the second day of the hearing, the Complainant submitted that she remains of the view that she commenced her employment on 14 July 2023.

The Complainant also, and it appears in the alternative, asserted that the student placement should be regarded as part of her continuous employment with the Respondent. The Complainant stated that during her placement, she was subject to a one-to-one supervision; she had someone to help her with her portfolio; meals were provided to her; and the disciplinary process applied to her. The Complainant maintained that she was treated as an employee.

The Complainant stated that on 14 July 2023 a full-time job was offered to her, and she attended an interview on 21 July 2023. The Complainant said that the recruitment was a continuous process and continuation of her employment. The Complainant said that salary payments was not the only way to compensate her and there were other aspects that were more valuable to her than pay.

The Complainant agreed that the letter of offer was sent to her on 26 July 2023. She said that she did a few shifts for another organisation between the end of her placement and the commencement of her employment with the Respondent. However, she said that she did her last shift on 9 July 2023 as she thought she would be starting straight away with the Respondent.

The Complainant’s employment with the Respondent was terminated with immediate effect on 24 July 2024. The Complainant alleges that she was unfairly dismissed.  The Respondent rejects the claim.

The relevant law

Unfair Dismissals Acts 1977 as amended provides in relevant parts as follows.

“contract of employment” means a contract of service or of apprenticeship, whether it is express or implied and (if it is express) whether it is oral or in writing;

“date of dismissal” means—

(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Acts 1973 to 2005, the date on which that notice expires,

(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Acts 1973 to 2005, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Acts 1973 to 2005.

(c) where a contract of employment for a fixed term expires without its being renewed under the same contract or, in the case of a contract for a specific purpose (being a purpose of such a kind that duration of the contract was limited, but was, at the time of its making, incapable of precise ascertainment), there is a cesser of the purpose, the date of expiry or cesser;

“dismissal”, in relation to an employee, means— (a) 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

“employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative;

“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 and an individual in the service of a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014) shall be deemed to be employed by the local authority;

Section 2 deals with exclusions from the protection of the Act. Section 2(1) provides:

(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 […],

Section 4 addresses the issue of apprenticeships and is not relevant here.

Section 6 dealing with unfair dismissal provides as follows.

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) … ()

Preliminary matter – the length of service

The Respondent raised a preliminary matter of the duration of the Complainant’s service with the Respondent. The Respondent asserted that the Complainant did not have the service required to have the protection of the Act.

The parties were given the opportunity to furnish written submissions post first day of the hearing and a second day of the hearing was scheduled to allow the parties to address the matter. There was no post-hearing communication or/and a supplemental submission from the Respondent. At the hearing on 13 February 2026, the Respondent advised that it relied on its submission of 19 November 2025, as outlined above. The Complainant did not furnish a written submission on the preliminary matter.

An employee must establish that they have one year’s continuous service with an employer to maintain a complaint of unfair dismissal under the Act. In this case, the Complainant submitted that

1.      Her student placement from 16 January 2023 to 10 May 2023 constitutes employment.

2.      She was processed for the relief worker role between May and July 2023. The Complainant suggested that in the period between 10 May 2023 and July 2023 she was in the continuous process of obtaining employment with the Respondent, and as a consequence she was in continuous employment from 16 January 2023 to July 2024.

3.      She commenced working for the Respondent as a relief worker on 14 July 2023 when she attended an induction.

4.      She was dismissed without notice on 24 July 2024.

The Respondent asserted that the Complainant did not commence her employment with the Respondent until 1 August 2023, having previously been on a student placement.

It is clear that to enjoy the protection of the Act, the Complainant must meet the service requirement set out in the Act unless a provision of the Act exempts her from that requirement. The Complainant has not contended that any provision of the Act removes from her the statutory requirement to have acquired one year’s service in order that the protection of the Act would apply to her.

The first matter for me to consider is if the relationship between the Complainant and the Respondent during her student placement from 16 January 2023 to 10 May 2023, and in the period from 10 May 2023 onwards comes within the scope of the Act.

The most recent case in this area is the Supreme Court decision in The Revenue Commissioners v Karshan (Midlands) Ltd t/a Domino's Pizza [2023] IESC 24. While this is not an employment law case but one relating to the classification of employees for the purposes of income tax, it is of assistance in determining a worker’s status, nonetheless. 

In Karshan (Midlands) Ltd t/a Domino’s Pizza[2023] IESC 24, the notion of a ‘test’ to determine employment status was rejected with Murray J concluding that every case turns on its particular facts and that it is necessary to assess all relevant features of the relationship, identifying those features that are and are not consistent with an employment contract and “determining based upon the sum of those parts the correct characterisation”.  

Murray J outlined that the framework in Ready Mixed Concrete (South East) Ltd. v Minister for Pensions and National Insurance [1968] 2 QB 497 and developed in Market Investigations v Minister of Social Security [1969] 2 QB 173 (decisions later endorsed and applied in the Denny judgment) remain a “reliable structure for the identification of a contract of employment”, concluding that the question of whether a contract is one of service or for services should be resolved by reference to the following five questions:

(i) Does the contract involve the exchange of wage or other remuneration for work?

(ii) If so, is the agreement one pursuant to which the worker is agreeing to provide their own services, and not those of a third party, to the employer?

(iii) If so, does the employer exercise sufficient control over the putative employee to render the agreement one that is capable of being an employment agreement?

(iv) If these three requirements are met the decision maker must then determine whether the terms of the contract between employer and worker interpreted in the light of the admissible factual matrix and having regard to the working arrangements between the parties as disclosed by the evidence, are consistent with a contract of employment, or with some other form of contract having regard, in particular, to whether the arrangements point to the putative employee working for themselves or for the putative employer.

(v) Finally, it should be determined whether there is anything in the particular legislative regime under consideration that requires the court to adjust or supplement any of the foregoing.

233: In other words, the decision-maker is concerned to establish a right of control, over what is to be done, at least generally the way in which it is to be done, the means to be employed in doing it, the time when and the place where it shall be done. That must take account of the nature of the employment and the control an employer would be reasonably expected to exert. If unskilled, close direction as to the means and manner by which the work is to be done is to be expected, while if skilled, the employer would not be expected to be in a position to direct the worker as to how to achieve the prescribed objective.

234: But, if the putative employer does not enjoy the power to direct the type of work the worker is required to do, the relationship will not be capable of constituting an employment relationship (Minister for Education v. The Labour Court and ors. at para. 9.13, and para. 102 of the reported judgment). Similarly, if the service is provided to a person who has no entitlement to prescribe times by which the work is to be done, no power to determine where or in what conditions the work is to be done or, within an enterprise, the persons who were to do particular work, it is difficult to see how this requirement could be met. While in cases involving skilled work, it is to be expected that the employer will not have the right to direct how the work is to be done, the test requires that the employer retain some residual authority over it. An analysis of the cases suggests that experienced fact finders have had little difficulty in distinguishing those cases which present this minimum level of control, from those that do not.

The first three questions are a filter, and if any of the three questions are answered in the negative there can be no contract of service.  If all three questions are answered positively, the decision maker must then proceed to look at all the facts to ascertain the true nature of the relationship.

I am satisfied that the correct approach to the issue is as per the Supreme Court’s decision in Karshan.  The Supreme Court reviewed the case law and various ‘tests’ for determining a worker’s status, and reformulated and restated the approach to the question of employment status.

I will now investigate if the relationship between the Complainant and the Respondent comes within the scope of section 1(1) of the Act.

Period from 16 January 2023 to 10 May 2023

There was no dispute that the Complainant was on a student placement with the Respondent from 16 January 2023 to 10 May 2023. The Complainant asserts that this relationship constitutes employment for the purposes of the Act. The Respondent disagrees.

Application of the Karshan framework

(i)               Does the contract involve the exchange of wage or other remuneration for work?

The first question I must consider is whether the parties have entered into a contract at all (whether expressed or implied). For a contract of employment to exist, there has to be an offer of work, acceptance of that offer, and resulting payment or “consideration”.

If there was payment by the Respondent to the Complainant for a service directly or indirectly for the provision of the Complainant’s labour, whether agreed in writing or not, and whether the work is carried out on a once off basis or on a continuous basis or anything in between, there is a contract which is capable of being an employment contract.

There was no dispute between the parties that the Complainant did not receive a salary or wages during her placement with the Respondent.

The framework set out in the Karshan judgment is clear that that the question of whether a person is an employee can be resolved by firstly having regard to the three ‘filter’ questions. If any one of these questions is answered negatively, no contract of employment can exist.

Taking all of the above into consideration, I find that the first question must be answered negatively in the circumstances where there was no exchange of wage or other remuneration for work.

Consequently, the Complainant during the period of her placement did not come within the definition of an employee under the Act.

Period between 10 May 2023 and 1 August 2023

There was no dispute that the Complainant’s placement ended on 10 May 2023. A variety of assertions were put before me suggesting that the period of engagement with the Respondent with a view of obtaining employment constitutes employment and, it appears in the alternative, that the employment commenced on 14 July 2023 when the Complainant attended induction.

There was no dispute that the placement concluded on 10 May 2023.  Subsequently, the Complainant appears to have applied for a position with the Respondent. While the Complainant asserted that she was offered and accepted the position and commenced her employment on 14 July 2023, the evidence presented shows that the Complainant emailed the Respondent’s HR Coordinator on 22 March 2023 stating that she was on a student placement with the Respondent and was advised to forward a copy of her curriculum vitae (CV) for the HR Coordinator’s perusal and consideration. On 23 March 2023, the Complainant emailed the HR Coordinator again enclosing a copy of her CV “as an application for any position that come available”.

On 7 June 2023, the HR Coordinator emailed the Complainant informing her that the Respondent was scheduling interviews for the positions of locum/relief staff and the Complainant was scheduled for an interview on 13 June 2023.

The Complainant replied on 8 June 2023 asking to reschedule the interview for a later appointment in the afternoon on 13 June 2023. She then emailed on 12 June 2023 requesting to hold the interview remotely or to reschedule. The Complainant stated in her email that she was scheduled for work for an overnight. At the adjudication hearing, the Complainant confirmed that, at that time, she worked for another organisation.

The HR Coordinator replied that the interview would be rescheduled to a time and date that suited the Complainant. The interview was ultimately rescheduled for 21 June 2023. 

The email exchange furnished by the Complainant shows further that a document entitled Letter of Offer was emailed to her on 26 July 2023 at 14:55. On 31 July 2023 at 13:00 the Complainant emailed the Respondent back stating, “I have attached my completed documentation for your perusal and consideration”.

The HR Coordinator replied on 1 August 2023 at 9:19 stating that the Respondent had difficulty trying to read the documents and asking for the Complainant’s bank details. On 1 August 2023 at 10:19 the Complainant replied, “Here is another copy, for your records”. The HR Coordinator replied at 10:20 “thanks [the Complainant’s first name], that’s fine.” The Complainant reverted at 10:22 stating “Great, thanks for letting me know.”

On 2 August 2023, at 16:09 the HR Coordinator emailed the Complainant:

“Attached contract of employment. Please sign and return to me within 28 days. If you have any questions in relation to any item in the contract please feel free to contact me. I will be adding your name onto the WhatsApp Relief Panel today.”

The Complainant signed and dated the document on 2 August 2023. I note that the first contract does not contain a commencement date. However, the second contract issued to the Complainant when she became a Night Support Worker states:

“Your employment in this role commences on 22nd January 2024 and your original employment date was 1st August 2023.”

The Complainant confirmed at the hearing that at no stage she questioned the commencement date in the contract.

I am unable to identify the basis on which the Complainant formed the view that she was an employee of the Respondent either during her placement or in the period between May and August 2023. There is nothing to suggest that the Complainant could have reasonably been mistaken as to her status. This conclusion is further reinforced by the Complainant’s own evidence that she secured and undertook employment elsewhere following her placement with the Respondent.

Regarding the date of dismissal, I find that the Complainant was dismissed with immediate effect on 24 July 2024 and received a payment in lieu of notice in line with her contract.

Having carefully considered the foregoing, I find that the Complainant commenced her employment with the Respondent on 1 August 2023 and her employment terminated on 14 July 2024.

It is clear that to enjoy the protection of the Act, the Complainant must meet the service requirement set out in the Act unless a provision of the Act exempts her from that requirement. The Complainant has not contended that any provision of the Act removes from her the statutory requirement to have acquired one year’s service in order that the protection of the Act would apply to her.

I must find, therefore, based on all the evidence and submissions that the Complainant had, at the date of the termination of her employment, less than the service required by the Act. On that basis I have no jurisdiction to adjudicate on the substantive issue of her dismissal.

 As the Complainant does not have the requisite continuous service with the Respondent, I have no jurisdiction to inquire into the complaint as the statutory service requirement has not been met. I determine that the complaint is not well founded.

Service requirement – unfair dismissal