Mr G Rush v - Representative J Mark Gibson — 2022

The Tribunal heard only the Respondent's preliminary jurisdictional challenge to the unfair dismissal claim. It found that the Claimant had first done unpaid work experience at the Estate in November 2017, then paid work from May 2018 during school holidays and again in May 2019 on study leave. He did not work at all from week ending 31 May 2019 to week ending 8 July 2019, then resumed paid work from week ending 12 July 2019. A written contract was later signed on 16 September 2019 recording a start date of 19 August 2019.

The central issue was whether the June 2019 gap was bridged so that the Claimant could show two years' continuous service by the effective date of termination on 5 May 2021. The Tribunal accepted that the Claimant and Respondent had an understanding that he could return during school holidays, but it held that this was not the same as an arrangement that the employment relationship continued during the periods when he was back at school. There was no evidence of continuing employment for any purpose during the gaps, no entitlement to pay or benefits during those periods, and no contact between the parties except when a holiday was approaching.

The Tribunal applied the statutory continuity provisions in s.210 and s.212 ERA 1996 and the authorities cited on employee status and continuity, including Ready-Mixed Concrete, Carmichael, Autoclenz, Kickabout Productions, Windle & Arada, and Mark Insulations. It concluded that s.212(3)(c) did not apply because the facts did not show a custom or arrangement that the Claimant was regarded as continuing in employment during the non-working periods. It also noted the change in the relationship when the Claimant started working permanently with regular hours and a regular wage in August/September 2019.

Because the June 2019 break was not bridged, the Claimant did not have two years' continuous service at the effective date of termination. The Tribunal therefore dismissed the unfair dismissal claim for lack of jurisdiction. It said that its conclusion made the earlier contract issue academic and did not affect the Claimant's other termination-related claims, which were to be dealt with separately.