FTD155

The claims referred to the Rights Commissioner concerned an allegation thatthe Respondent was in breach of section 6 of the Act in that he was treated less favourably than comparable permanent employees in respect of his hourly rate of pay;that the Respondent failed to provide him with a written statement in accordance with section 8 of the Act, and failed to provide him with a contract of indefinite duration in circumstances where he became entitled to such a contract by operation of law pursuant to section 9 of the Act. Furthermore, he claimed that his dismissal by redundancy on 1^stFebruary 2014 was contrary to section 13(d) of the Act as it was for the purpose of avoiding a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3) of the Act.

The Rights Commissioner found that the complaints pursuant to sections 6 and 13 were not well-founded. He found that the Complainant’s complaint under section 8 of the Act was outside the time limits prescribed by section 14(3) of the Act and consequently was statue barred and finally he found thatthe complaint alleging a breach of section 9(2) of the Act was well founded and required the Respondent to pay €3,000 in compensation for the breach. The Complainant informed the Court that the appeal before the Court was confined to the issue of redress awarded by the Rights Commissioner in respect of the breach of section 9 of the Act only.

The complaints were received by the Labour Relations Commission Rights Commissioner Service on 14th February 2014, and the hearing was heard on 14th May 2014.

The Complainant also lodged a complaint with the Labour Relations Commission on the same day pursuant to the Unfair Dismissals Acts, 1977-2007 claiming compensation in respect of“unfair selection”for redundancy.

Positions of the Parties

Mr. Paul Hardy, SIPTU on behalf of the Complainant contended that the redress decided upon by the Rights Commissioner to award €3,000 for the breach in this matter, which led to the Complainant's dismissal, was not adequate as it did not meet the standard set down in the European Court of Justice Case C-14/83van Colson and Kamann v Land Nordrhein-Westfalen[1984] ECR 1891 by ensuring that the sanction for breaches of European Union rights must be effective, proportionate and dissuasive. Mr. Hardy submitted that the appropriate remedy was reinstatement of the Complainant to his former role with the Respondentwith effect from the date of his dismissal on 1^stFebruary 2014.

Mr. Shane MacSweeney, MacSweeney & Company Solicitors, on behalf of the Respondent, stated that theComplainant’s appeal is in respect of the relief granted pursuant to the Act only. He informed the Court that decision /relief granted by the Rights Commissioner in respect of the Unfair Dismissals Acts 1977-2007 has been accepted by both the Complainant and the Respondent and no appeal was brought by either side. Under the Unfair Dismissals Acts the Right Commissioner determined that the redundancy was legitimate, save that the consultation was inadequate, thereby rendering it an unfair dismissal and awarded the Complainant the sum of €7,500 in compensation.

Mr. MacSweeney contended that due to the Respondent’s precarious financial position over a period of 6 years which remains extremely constrained, it would not be economically feasible to reinstate the Complainant in circumstances where his role was made redundant and he was paid a redundancy payment. Nor should it do so in circumstances where the Rights Commissioner has already adjudicated on the issue of his dismissal.

Estoppel

The first issue the Court must consider is whether the Complainant is estopped from relying on the facts of hisdismissal by redundancy.

The Complainant submitted complaints to the Rights Commissioner on 14^thFebruary 2014, under both Protection of Employees (Fixed-Term Work) Act 2003 and the Unfair Dismissals Acts 1977-2007. Both cases were heard on the same day and the Rights Commissioner issued both Decisions on 11^thAugust 2014. In relation to hisdismissalthe Complainant submitted claims under section 13 of the 2003 Act and simultaneously alleged that his dismissal was unfair by reason of his unfair selection for redundancy under the 1977-2007 Acts. The Rights Commissioner found that the former claim was not well-founded, while he held that there was a genuine redundancy, he upheld the unfair dismissal claim and awarded the Complainant €7,500 in compensation. The latter decision was not appealed and cannot be re-litigated in subsequent proceedings.

While section 18 of the 2003 Act allows for parallel claims, with relief being allowed under one Act only, the instance claim is not concerned with the dismissal of the Complainant resulting from penalisation pursuant to a claim under section 13, but is a claim for relief in respect of a breach under section 9 of the Act. The Court is of the view that being entitled to a contract of indefinite duration has no bearing on the Complainant’s dismissal. His dismissal arose due to a situation where the role he fulfilled was no longer required, the Rights Commissioner held it to be a genuine redundancy, therefore it was unrelated to the status of the job holder as a fixed term worker and cannot be the basis for his appeal of the redress awarded by the Rights Commisisoner.

The Court finds that since the decision of the Rights Commissioner relating to the dismissal of the Complainant was not challenged by either party, the Complainant is now estopped from raising this issue.

Redress

The Rights Commissioner held that a contract of indefinite duration came into being by operation of section 9(3) on 9^thJuly 2009 and awarded €3,000 compensation. The Complainant has appealed against the redress awarded and sought reinstatement.

The Court finds that the fact that he was entitled to a contract of indefinite duration does not place him in a superior position where he could not be made redundant where a genuine redundancy situation exists. In that regard the Court notes the decision of the High Court inHolland v Athlone Institute of Technology[2012] 23 E.L.R. 1. In that case Hogan J. pointed out that that a finding that an employee acquired a contract of indefinite duration by operation of law does not place such an employee in a superior position to that of an ordinary employee whose status as the holder of a contract of indefinite duration was never in doubt.

Determination