Continuity of Service for Unfair Dismissal*

By January 7, 2022Employment Law

Continuity of Service for Unfair Dismissal*

This issue arose in case ADJ-00029710 being a case of Dowling and Activo (Ireland) Limited.

The respondent submitted that the complainant did not have the required one year’s continuous service. The complainant contended that he commenced employment on 2nd July 2019 and that one year and 26 days later on 28th July 2020 the employment was terminated. The complainant contended that the employment commenced when he signed the contract of employment rather than when he commenced employment being 5th August 2019. If the commencement date was 5th August 2019 then the employee had 11 months and 26 days service only.

The Adjudication Officer referred to the Section 1 of the Act being the Unfair Dismissal Legislation which defines an employee as one “who has entered into and works under (or where the employment has ended) worked under a Contract of Employment”.

Section 2 (1) (a) excludes from the protection of the Act an employee who;

At the date of his dismissal has less than one year’s continuous service with the employer who dismissed him”.

Section 2 (4) of the Act sets out the issue of continuity of service.

The Adjudication Officer pointed out that the Adjudication Officer would find it difficult to accept that providing company documentation to a person whose is appointment is imminent, which is a common place occurrence, would constitute a computable service.

The Adjudication Officer pointed out that the First Schedule of the Minimum Notice and Terms of Employment Act, 1973, excludes service in which;

“An employee is not normally expected to work for at least 21 hours” and it will not count in;

“Computing a period of service”.

The Adjudication Officer pointed out that Section 9-13 of the First Schedule set out absences from employment which can or cannot be counted in computing a period of service. The Adjudication Officer pointed out that all such absences are concerned with persons already in employment, performing tasks and stepping off the job temporarily as opposed to waiting for their employment to commence.

The complainant referred to the case of Herrero –v- Instituto Madrilleno De La Salud Case C-294-04 which held that continuity of service for seniority runs from the date on which an employee is hired rather than the date she was able to take up her duties. The Adjudication Officer pointed out that this was decided under Directive 76/207/EEC in relation to the principle of equal treatment. The Adjudication Officer pointed out that they were unable to identify an equivalent statutory protection for the period between signing a contract and taking up an employment.

The Adjudication Officer held that they did not have jurisdiction to hear the complaint.

*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.

*In contentious cases a solicitor may not charge fees or expenses as a proportion or percentage of any award or settlement.

Richard Grogan

Author Richard Grogan

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