EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
EMPLOYEE UD807/2012 RP638/2012
against
EMPLOYER
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr T. Ryan
Members: Ms J. Winters
Mr T. Brady
heard this claim at Dublin on 18th September 2013
Representation:
_______________
Claimant:
Respondent:
The determination of the Tribunal was as follows:-
Background:
The respondent is a cemetery trust made up of 5 cemeteries. The claimant was employed by the respondent as a general operative.
Preliminary point:
The Tribunal heard evidence on a preliminary point, which was, as to whether it had jurisdiction to hear the claim under the Unfair Dismissals Acts, 1977 to 2007.
Opening arguments:
The respondent contends that the claimant’s fixed term contract ended. The claimant contends that there was no subsisting fixed term contract in place at the time of the dismissal and that he was working under a contract of employment.
Respondent’s case:
The Tribunal heard evidence from DL, HR manager for the respondent. He confirmed that the claimant was a general operative who began in May 2008 on a fixed term 3 month contract. The position was revised and a further 6 month contract was provided for. A further 2 year contract taking the claimants employment up to February 2011 was then given. Contracts were normally issued by post and a further 12 month contract would have issued, and it would have expired in February 2012. No signed copy of this contract was on file.
In January 2012 the overall financial position of the respondent was looked at by the committee and chief executive officer. Structural changes were put in place and four people including one general operative were made redundant initially.
DL stated that the respondent was in no position to keep staff on their books. The C.E.O. would have made the overall decision not to renew the claimant’s contract when it was coming to an end. The claimant was called to a meeting and informed of the respondent’s decision to let him go. He was given two week’s notice.
Under cross examination DL said that contracts were not sent by registered post, and were not followed up. He also stated that there was no review in place at the time to make sure there were up to date on file. Asked about notes added to the claimants performance review by PR after the claimant had signed it DL stated that “it would not be good practice”. Asked about not paying the claimant’s redundancy DL said that the respondent hadn’t been in a position to pay it but conceded that it was due.
Claimant’s case:
The claimant gave evidence of calling to the offices of DL on 6th January 2012. It was a normal day and he was making an annual leave request. DL asked him what date he started with the respondent and said that the four years would soon be up, he suggested a further 3 month contract to bridge the gap unless the claimant or PR had a problem with it. He left the office a happy man.
The claimant was aware that he didn’t have a written contract at the time and was keeping his head down.
At a meeting on 27th January he was called to a meeting and told his contract would not be renewed due to a decision of the committee. He was taken aback as DL had already suggested a further 3 month contract.
Under cross examination the claimant said that he only was aware of the August 2008 contract after requesting information under the Data Protection Act in May 2012. He didn’t see it or sign it.
He confirmed his address’s at the time of postage and confirmed that he got his payslips by post. He was not given the objective reasons for the issuing a fixed term contracts.
Determination:
The Tribunal has carefully considered the evidence adduced in this case.
The Tribunal notes that the claimant commenced on a three month fixed term contract in May 2008 and continued on a series of fixed term contracts until February 2011.The respondent gave evidence that contracts were normally issued by post and a further 12 month contract 'would have' issued in February 2011 which 'would have' expired in February 2012. No evidence was provided to the Tribunal that this final 'fixed term contract' existed and the claimant denies having received one. The Tribunal further notes that the respondent did not have a copy of this contract on its file. Following the completion of the two year fixed term contract in February 2011 the claimant remained on in his employment and worked under the same terms and conditions as he had worked previously.
The Protection of Employees Fixed Term Work Act 2003 seeks to guard against the potential abuse of successive fixed term contracts. The term 'contract of indefinite duration' is not defined in the 2003 Act, but it has been judicially defined outside the context of the 2003 Act as meaning no more than a contract terminable upon the giving of reasonable notice.
The claimant had completed his third fixed term contract in February 2011 with a total service of just under three years with the respondent. At that juncture the respondent did not renew his contract but allowed him continue in his employment without signing a further fixed term contract or otherwise. Neither did the respondent comply with its obligations pursuant to Section 8 (2) of the Act “Where an employer proposes to renew a fixed-term contract, the fixed term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.” The Tribunal is satisfied that whilst a breach of Section 8(2) does not automatically give the claimant a contract of indefinite duration, that coupled with the fact that his contract was not renewed within a reasonable time and that the claimant remained on under the same terms and conditions for a period of almost twelve months does. The Tribunal notes that whilst the facts of the claimant’s situation do not fall square within Section 9(1) and 9(2) of the Act in relation to successive fixed term contracts, it is exactly this type of abuse, albeit unintentional, that the Act was designed to protect.
The Tribunal is satisfied that, because of the circumstances of the case, it is not precluded from hearing the case by Section 2 (2) (b) of the Unfair Dismissals Act 1977 which states: “dismissal where the employment was under a contract of employment for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment) and the dismissal consisted only of the expiry of the term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.”
The Tribunal concludes that the claimant’s contract became a contract of indefinite duration in February 2011.
Having taken all the evidence on the preliminary point into consideration the Tribunal is satisfied that it has jurisdiction to hear the claim under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)