UD672/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                                CASE NO.

David Dawson

                                                                                                                                    UD672/2012

against

Telefonica O2 Ireland Limited T/A O2

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms K.T O'Mahony B.L.

Members:     Mr D. Hegarty

                    Mr J. Flavin

heard this claim at Cork on 16th October 2013 and 18th February 2014

Representation:

_______________

Claimant:         Mr David Fagan, Business Legal, Solicitors, Fitzwilliam

                          Business Centre, 77 Sir John Rogerson's Quay, Dublin 2

Respondent:   IBEC, Confederation House, 84-86 Lower Baggot Street, Dublin 2

The determination of the Tribunal was as follows:-

Preliminary Issue                                        

TheTribunal has to determine whether the claimant is entitled to maintain a claim for unfair dismissal, in particular whether the series of fixed-term contracts or the last contract under which he was employed by the respondent excluded him from the protection of the Unfair Dismissals Acts.

Summary of Evidence

It was common case that the claimant commenced employment with the respondent on 24 May 2010, as a Corporate Acquisition Manager, under a fixed term contract to run over a six-month period until 24 November 2010. The written contract which was signed by both parties contained the following clause:

         The Unfair Dismissals Act 1977 shall not apply in relation to your dismissal where that dismissal consists only of the expiry of the term of this contract.

The claimant’s position was that he expressed his concerns about the contract being for 6 months but was told it was just a way around headcounts and not to worry. He assumed it would be sortedand spoke to his line manager in November advising him of his need for stability.

By letter dated 24 November 2010 the claimant’s contract was extended by a further three months from 24 November 2010 to 24 February 2011. This letter contained the following:

“All other terms and conditions will remain unchanged and in line with your current working arrangements and contract.”

The claimant’s position was that it was only at the hearing before the Tribunal that he heard for the first time that the position of corporate acquisition manager had been available because an employee was going on maternity leave. The respondent’s evidence was thatthe position of corporate acquisition manager had been offered to the claimant to cover a business need and approval was only given for the hire because a member of thecorporate acquisition team was going on maternity leave. The employee subsequently extended her maternity leave by three months to February 2011.

In February 2011 the claimant was informed that a corporate account manager (AOR) was going on maternity leave and he accepted the offer to cover her absence. HR’s letter dated 25 February 2011, which was signed by both parties, stated:

“We are pleased to confirm the extension of your temporary position as Corporate Account Manager … from 24 February 2011 to 30 September 2011.

The purpose of this contract extension is due to a maternity leave cover. Your contract of employment will cease when the employee returns from Maternity Leave”.

All other terms and conditions remain unchanged and in line with your current working arrangements and contract.”

The respondent’s corporate sales manager met the claimant on 14 September 2011 to inform him that his contract was not being renewed because AOR was returning from maternity leave. Subsequently, the respondent’s letter dated 20 September 2011 to the claimant stated:

“We are writing to confirm that your fixed term position as Corporate Business Development Manager will terminate on the 20^th October 2011 so we are hereby giving you one calendar month’s notice as per your contract of employment.”

Following AOR’s return from maternity leave the claimant remained on doing a handover to AOR. He was paid up to 31^st October 2011. Thereafter, he remained on with the respondent until mid-November to tie up loose ends but his position was that his employment ended on 31 October 2011. The respondent’s position was that the last day he worked was 20 October 2011.

The claimant had tried on numerous occasions between mid-September and mid-October to meet his corporate sales manager to confirm that the reason for the termination of his employment was budgetary constraints and an employee’s return to work from maternity leave.

The claimant was due to finish on 20 October 2011 but on AOR’s return from maternity leave he continued in the process of handover to her and was paid up to 31^st October 2011. Thereafter, he continued to tie up loose ends up until mid-November. Between mid-September and mid-October the claimant made a number of attempts to meet the corporate sales manager to confirm that his employment with the respondent had been terminated due to budgetary constraints and the return to work by a member of staff at the end of her maternity leave.

The respondent contended that the claimant was at all times aware that he was employed on fixed term contracts.

Determination:

The Tribunal .considered the evidence and the legal submissions.

Section 2 of the Unfair Dismissals Act 1977, which provides a number of exclusions to the operation of the Act, provides at:

         (2) This Act shall not apply in relation to:-

         (b) 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 section 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.

Section 23 (a) of the Maternity Protection (Amendment) Act 2004 substituted a new paragraph (c) to section 2 (2) by inserting:

“(c) dismissal where the employee's employer at the commencement of the employment informs the employee in writing that the employment will terminate on the return to work with that employer of another employee who is absent from work while on protective leave or natal care absence, within the meaning of Part IV of the Maternity Protection Act, 1994, … and the dismissal of the first-mentioned employee duly occurs for the purpose of facilitating the return to work of that other employee.”

The contract for the term 24 May 2010 to 24 November 2010 satisfied all the conditions set out in para (b) above to exclude the application of the Act to the expiry of the contract without its renewal: the contract was in writing, signed by both parties and expressly provided that the Act would not apply to a dismissal consisting only of the expiry of the term of the contract.

The second fixed term contract for the term 24 November 2010 to 24 February 2011, which was signed by both parties purports to continue the exclusion from the protection of the Acts by the inclusion in its letter of 24 November 2011 of the following:

“All other terms and conditions will remain unchanged and in line with your current working arrangements and contract.”

Neither party cited any authority to the Tribunal as to whether this statement is sufficient to exclude the operation of the Act or whether a fresh exclusionary clause is required in the extended/renewed contract. Thus, the Tribunal regards this as a moot point.

The Tribunal finds that the crucial contract for determining whether the claimant is entitled to the protection of the Act is the contract for the term 24 February 2011 to 30 September 2011 (the third contract) under which the claimant was employed to cover an employee’s maternity leave. There was some argument as to whether this was a fixed term or specific purpose contract. However, the Tribunal finds that the purpose of the employment being to cover for a maternity leave it comes within the exclusionary provision in para (c) of section 2 (2) above. HR’s letter dated 25 February 2011, complies with all the requirements set out in of para (c): the claimant was informed in writing at the commencement of the employment that the employment would terminate on the return to work of another employee who was absent on “protective leave”, which includes maternity leave and there is no requirement that a waiver clause be included in the contract.

Despite the fact that the contract extended beyond both the specified date of 30 September 2011 (to allow for the contractual notice to run) and beyond the specified event (another employee’s return to work from maternity leave) the Tribunal is satisfied that the employment was terminated because of the other employee’s return to her position and while there was some time overlap during which both were working the claimant was, during that time, involved in the process of a handover and tying up loose ends. The Tribunal does not accept that a new contract was entered into by the parties during the extended period. The Tribunal finds support for its conclusion in the cases of Waterford Multiport Limited (in Liquidation) v Margaret Fagan and Others (HC 13 May 1999) and Bolands Limited (In Receivership) v Josephine Ward and Others) [1988] ILRM 382 although these cases involved interpretation of a provision of the Minimum Notice and Terms of Employment Act 1973. Macken J in Waterford Multiport interpreting the Supreme Court’s decision in Bolands at page 15 of her judgement stated:           

However, it is again clear from the Boland case, supra, that an extension of the notice period, howsoever made, or a continuation in employment after the expiry date of the notice, does not in law, have any effect on the lawfulness or otherwise of the notice. The Supreme Court expressly held that the failure by the employer to fire the employees at the time of expiry of the notice period, did not constitute the employees re-employed by the employers ….

The Tribunal accepts that each of the temporary contracts was to provide cover during another employee’s maternity leave and is satisfied that the use of successive temporary contracts by the employer was not for the purpose of avoiding liability under the Acts.

For the above reasons the Tribunal finds that the claimant is excluded under paragraph (c) from the protection of the Unfair Dismissals Acts. 1977 to 2007 and that the extension of the employment did not nullify the exclusionary effect of paragraph (c).

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)