EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Gerard Kemmy – claimant UD1079/2013
MN563/2013
WT187/2013
Against
Amgen Technology (Ireland) T/A Amgen – respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms M. Levey B.L.
Members: Mr L. Tobin
Mr P. Trehy
heard this claim at Dublin on 30th September 2014
Representation:
_______________
Claimant(s) : Mr Frank Drumm BL, instructed by:
Ms. Oonagh Mead
Kelly Kennedy & Co Solicitors
22 Upper Mount Street, Dublin 2
Respondent(s) : Ms Niamh McGowan BL, instructed by:
Mr Michael Doyle
Arthur Cox Solicitors
Earlsfort Centre, Earlsfort Terrace, Dublin 2
The determination of the Tribunal was as follows:-
Preliminary Issue:
The respondent contended that the claimant’s employment had come to an end with the respondent company on 16th May 2013 in accordance with his fixed-term contract and therefore the Tribunal had no jurisdiction to hear the claim.
The claimant contended that the last fixed-term contract the claimant had been on was preceded by a period of six months when the claimant was working without any written contract; the previous fixed-term contract having expired on 30th November 2011. In May 2012 the respondent issued a fixed-term contract to the claimant to cover the period of 30th November 2011 to 16th May 2013 which the claimant signed. The claimant argued that this contract was an attempt by the respondent to avoid its obligations under the Unfair Dismissals Acts.
The claim under the Organisation of Working Time Act, 1997, was withdrawn at the outset of the hearing.
Extracts of the written submissions made by the respondent and claimant follow.
EXTRACT OF THE RESPONDENT’S SUBMISSION:
Background/Chronology
The Claimant commenced employment as a QC Biotechnology Analyst within the Biologics department of ‘Company A’ on 15th March 2010 pursuant to the terms of a one year fixed-term contract entered into between the parties on 3rd March 2010.
The Claimant was advised of changes in his terms and conditions by letter dated 9th March 2011 and signed his acceptance of same on 11th March 2011. In or around the 13th April 2011 the Claimant emailed his supervisor notifying him that his contract had expired in March and requested a new contract. His supervisor replied advising him that a new contract had been sent to him offering to extend his fixed-term until November 2011.
On 15th April 2011 the Claimant accepted the terms of a new fixed term contract of employment as a QC Biologics Analyst with Company A with a retrospective commencement date of 14th March 2011 and a termination date of 30th November 2011.
In or around 16th May 2011 the business of Company A was acquired by the Respondent and by operation of Article 4(1) of S.I. 131/2003 European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 all of the rights and obligations arising from the Claimant’s contract of employment transferred from Company A to the Respondent.
On 31st May 2012 the Claimant was issued a fixed-term contract covering the period from 30th November 2011 until 16th May 2013. The Claimant accepted the offered contract of employment on 31st May 2012.
On 1st March 2013 the Claimant was given notice by his supervisor that his contract would not be renewed past the expiry of its term on 16th May 2013. On 11th March 2013 a HR Senior Manager in the Respondent met with the Claimant to discuss the end of his contract and possible opportunities on site. In a follow up meeting with the Claimant on 17th April 2013 the HR Manager provided him with contact details for recruitment agencies.
Preliminary Issue to be Determined
The Respondent submits that there is a preliminary issue to be determined which is whether the provisions of the UD Acts apply to the contract of employment between the Claimant and the Respondent.
The Claimant’s final contract of employment contained the following term:
“You should note that the Unfair Dismissals Acts 1977 to 2007 shall not apply to a dismissal consisting only of the expiry of this fixed term contract without it being renewed.”
This written, signed contract was binding on both parties at the time of termination of the Claimant’s contract and the only one on which any adjudication is required.
The Respondent accepts that there was a period from 30th November 2011 until 31st May 2012 when the Claimant had no written fixed-term contract of employment. The Claimant could have refused to sign the May 2012 contract and the Respondent would not have been able to compel him to do so. Had the Respondent sought to terminate the Claimant’s employment during a period not covered by a fixed-term contract which complied with section 2(2)(b) of the UD Acts he may well have been entitled to the protection of the UD Acts. However, the Claimant voluntarily entered into a contract of employment on 31st May 2012 and the Respondent will give evidence that he did so without demur. Had the Claimant wished to seek independent legal advice prior to the signing of the May 2012 contract he was fully entitled to do so but the Respondent submits that it was under no obligation to ensure that he did so and neither would it be normal or standard practice for an employer to ensure an employee obtains such advice prior to signing a fixed-term contract renewal.
The Claimant knew that the nature of his employment was fixed-term. He signed the May 2012 contract with that knowledge and he did so, as he had done for his previous two contracts, on the basis that the provisions of the UD Acts did not apply to a dismissal arising only from the expiry of the term of the contract.
The Claimant’s representative contends that once a fixed-term contract lapses that the effect of that is to give an employee a permanent contract which cannot be set aside by subsequently entering into a new fixed-term contract. Respectfully any employee is entitled to enter into a contract of employment on whatever terms he/she wishes and there is no statutory or common law basis known to the Respondent which supports the position contended for by the Claimant’s representative.
Section 2(2)(b) of the UD Acts sets out the circumstances in which a fixed-term contract may exclude the application of the UD Acts and it is submitted that provided a contract meets the criteria set out in that section that the UD Acts have no application when the dismissal only arises on expiry of the fixed term. The contract signed by the Claimant met the criteria set down in section 2(2)(b) and therefore the UD Acts shall not apply.
Conclusion (Preliminary Issue)
On the authority of Ó’Cuinneagáin v Guardian Angels National School and in circumstances where the Claimant’s contract of employment complied with the conditions set out in section 2(2)(b) of the UD Acts the Respondent submits that the UD Acts do not apply to a dismissal consisting only of the expiry of the term without its being renewed under the said contract.
The Respondent respectfully submits that where the UD Acts do not apply to a dismissal the Tribunal has no jurisdiction in the matter and the Respondent asks the Tribunal to so find as a preliminary matter in this case.
The Respondent denies that it was required to provide the Claimant with statutory notice of the termination of his employment in circumstances where he was employed on a fixed-term basis and the employment terminated on the expiry of the fixed-term contract. The Claimant had notice of the date on which the contract would terminate from the date on which he signed the contract.
Without prejudice to the foregoing, the Claimant was given notice on 1st March 2013 that his fixed-term contract would not be renewed on its expiry on 16th May 2013. A copy of an email from the Claimant’s supervisor to the HR Senior Manager, dated 2nd March 2013 confirming that the Claimant had been informed, the previous day, of the non-renewal of his fixed-term was provided to the Tribunal. The Claimant therefore received circa eleven weeks’ notice of the termination of his contract of employment which is far in excess of the minimum period provided for in section 4(2)(b) of the 1973 Act. The fact he received oral rather than written notice of the termination of his employment is immaterial – the notice he received was precise in that he was made aware his employment would terminate on 16 May 2013.
Conclusion
The Respondent submits that the Tribunal has no jurisdiction to hear the Claimant’s complaint under the UD Acts as the Claimant’s last fixed-term contract of employment specifically excludes the application of the UD Acts on its expiry in accordance with the conditions set out in section 2(2)(b) of the UD Acts and the Respondent requests the Tribunal to so determine.
The Respondent denies that it was required to provide the Claimant with statutory notice of the termination of his employment in circumstances where he was employed on a fixed-term basis and the employment terminated on the expiry of the fixed-term contract. Without prejudice to the foregoing, the Respondent provided the Claimant with circa eleven weeks’ notice of the termination of his contract of employment which is in excess of the two weeks required to be provided under the 1973 Act and on that basis the Respondent submits that the Claimant’s 1973 Act claim must fail and asks this Tribunal to so determine.
END OF RESPONDENT SUBMISSION
EXTRACT OF CLAIMANT’S SUBMISSION:
It is the Claimants contention that he was in continuous employment with the Respondent within the meaning of Schedule One of the Minimum Notice and Terms of Employment Act 1973 and by extension within the meaning of the Unfair Dismissals Acts 1977 -2007, from the 15th March 2010 to the 16th May 2013.
He contends that his dismissal was in breach of Section 2 of the 1993 Amendment to the 1977 Unfair Dismissals Act and was in breach of Sections 6, 8, 9 and14 of the Protection of Employees [Fixed-term Work] Act 2003.
He asserts that on the expiry of his fixed term contract on Wednesday, 30th November 2011, having been in continuous employment since 15th March 2010, some 20 months, he acquired rights under the Unfair Dismissals Acts and was no longer a fixed term employee by operation of law.
He contends that he was in continuous employment from the 15th March 2010 until the 16th May 2013 and that the Respondent's purported attempt to alter his employment status by writing to him on the 231d May 2012 with "a renewal of your fixed term contact from 30 November 2011 to 16th May 2013 [the "Extended Date")" was an attempt to avoid their obligations under Unfair Dismissals Acts 1977-2007 and the Protection of Employees (Fixed Term Work) Act 2003.
It is respectfully submitted that this Tribunal does have the jurisdiction to hear the Claimant's complaint under the Unfair Dismissals Act 1977 as Amended.
It is further submitted that the Claimant's employment transmuted from a fixed term contract to a contract of indefinite duration by operation of law following the expiry of his second fixed term contract at the 30th November 2011.
Furthermore the Claimant was provided with no objective grounds as required under Section 8(2) of the Protection of Employees (Fixed Term Work) Act 2003 in relation to the renewal of his first two fixed term contracts.
Preliminary determination:
The respondent submitted that the claimant knew from previous years that his contract was on a fixed term basis. The claimant entered into a third contract in respect of the period 1st December 2011 to 16th May 2013 and signed same on 31st May 2012. No argument was made that he was pressurised unfairly or otherwise to sign the contract. This contract had legal standing and has legal repercussions. The claimant was not in employment for a cumulative sufficient duration to acquire entitlements under the Fixed-Term Work Act and the fact that an argument was made that he was asked to sign a back-dated contract in an effort to avoid the Unfair Dismissals Act may have been sustainable if he had been dismissed during that period, however that is not the case. The Tribunal determines that it does not have jurisdiction to hear the claims under the Unfair Dismissals Acts, 1977 to 2007, and the Minimum Notice and Terms of Employment Acts 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)