EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Pavol Surani -claimant
MN569/2013
against
Hasbro Ireland Limited -respondent
under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms D. Donovan B.L.
Members: Mr J. Browne
Mr F. Dorgan
heard this claim at Waterford on 2nd March 2015
Representation:
Claimants: Mr. Rory Kennedy B.L. instructed by
Ms Edel Morrissey, Dobbyn McCoy, Solicitors, 2 Main Street,
Tramore, Co Waterford
Respondent: Mr. Adrian Twomey, Advokat Compliance Limited, Merrythought
House, Templeshannon, Enniscorthy, Co Wexford
The Claimant’s Case:
The claimant’s evidence was that he commenced working with the respondent in May 2007 as a general operative, doing machine work and essentially whatever needed doing. A contract dated 22nd May 2007 was opened to the Tribunal. This contract is stated to be a “Fixed Term Contract.” The claimant said that he finished work with the respondent on 10th February 2012 but that he never got a termination letter. He said his salary varied during that time. His claim form gave a basic salary of €550 per week.
He told the Tribunal that all his contracts contained a clause to the effect that the “employment shall terminate automatically” on a specified date but that he always came back for another period of work after each contract ended. He said the respondent would contact him when work was available for him but that this did not happen on the last occasion. He said the contracts were never explained to him, that he had limited English and had them translated at home.
The claimant said that he worked for six to ten months each year and that breaks between employment were no longer than three months.
The claimant’s latest contract was opened to the Tribunal and it confirmed “an extension” to the claimant’s “fixed-term employment” with the respondent from 30th January 2012 to 10th February 2012.
In cross-examination the claimant accepted that his employment terminated on 10th February 2012 but that he was always invited back to work after automatic termination of contracts. It was put to him that he was contacted by Ms. Q for the respondent in May 2012 to say there was a training course on 25th May 2012 and that there would be work available for him on 28th May 2012. The claimant agreed that Ms. Q contacted him and that there may have been one or two missed calls from her. However, he said he was told that the training was on 28th May 2012 and that when he called into the respondent’s premises on 28th May Ms Q told him the course was over that he was too late and that there was no work available for him. He also stated that because of language difficulties he may have misunderstood Ms. Q. It was put to the claimant that on the 28th May 2012 he indicated to Ms. Q that it suited him not to be working at that time and that he was told to phone Ms. Q when he was ready to work again. This was disputed by the claimant.
The claimant was asked why he never contacted the respondent after 28th May 2012 other than to send in two medical certificates and a letter explaining his medical condition to the respondent on or about 25th June 2012. The claimant said it was always the respondent who contacted him when they had work for him and that he sent in the medical certificates and the letter because the respondent had informed the workers that they should let the respondent know if there was a change in their medical condition.
He said he was suffering from high blood pressure and was in hospital undergoing tests but that there was nothing preventing him from returning to work. It was pointed out to the Tribunal that only one of the two certificates noted that the claimant was unfit for work and that this was only for three days towards the end of June 2012.
The claimant was asked if he considered himself terminated from his employment on 10th February 2012 why was he sending in medical certificates in June 2012 and the claimant gave the same answer – that he was merely informing the respondent of a change in his medical condition.
In cross-examination the claimant said he worked for two other employers during the years he worked for the respondent at times when the respondent had no work for him. The claimant said he looked for other work or was on social welfare during the times the respondent had no work for him.
The claimant was asked when he last worked prior to the 30th January 2012 (the commencement date of the latest contract) and the claimant said he did not have an exact date but that he had worked to shortly before Christmas.
It was then put to the claimant that the latest contract which was from 30th January 2012 to 10th February 2012 meant that he did not have 13 weeks’ continuous employment as is required if he is to be entitled to a notice period under the Minimum Notice Act. The claimant accepted that he did not have 13 weeks but said that he expected to return to work.
A letter dated 23rd January 2012 was opened to the Tribunal. This letter recited that the claimant was “laid off” from his “finishing time on 10th February 2012.” It was submitted on behalf of the claimant that the periods that the claimant was not employed by the respondent were lay offs following which the claimant returned to work for the respondent except on the occasion following 10th February 2012 and therefore had continuous service from when he commenced his employment with the respondent in 2007.
The Respondent’s Case:
Ms. Q for the respondent gave evidence that the claimant's contract expired on 10th February 2012. She said she contacted the claimant by telephone after about six efforts on 24th May 2012. She said the claimant was told that there was a training course scheduled for 25th May and that there would be work available for him on 28th May 2012. The claimant did not come to the course on 25th May but came into the workplace on 28th May about noon and was told that there was no work for him as he had not been at the course and had been replaced. Ms. Q said she told the claimant she would contact him but he indicated to her that it suited him at the moment not to work and gestured to her to keep it quiet.
It was put to Ms. Q in cross-examination that the periods the claimant did not work for the respondent were lay offs and that the claimant’s contract was a continuous contract albeit with periods of lay offs.
It was submitted by the respondent that the claimant did not have a continuous period of employment of 13 weeks and accordingly was not entitled to any notice period but in any event clause 4 of the contract dated 27th January 2012 was in the nature of notice and that it was indicated to the claimant in the letter of 23rd January 2012 and in his contract when the current block of work would end.
Determination:
Having carefully considered the evidence adduced at the hearing and the submissions of the parties the Tribunal finds that the claimant worked on a series of fixed-term contracts from 2007 up to the 10th February 2012 in so far the claimant had entered into contracts of employment directly with respondent where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date. However, the Tribunal notes that the fixed term in the contract dated 22nd May 2007 is not specified and it does not contain a finish date.
The Tribunal is satisfied that the respondent would have taken the claimant back after the expiration of the term in the contract dated 27th January 2012 when there was work available had the claimant wished to return. The Tribunal notes the conflict in evidence between the parties as to whether the claimant was invited back to work after the expiration of the contract on 10th February 2012 but the Tribunal is satisfied that the claimant did not work for the respondent after 10th February 2012 because this was the claimant’s own wish at that time.
The Tribunal finds that if the claimant’s contract ended by efflux of time on 10th February 2012 the claimant having less than 13 weeks’ continuous service was not entitled to notice and if the claimant’s contract ended because he did not wish to return in May 2012 he was not entitled to notice having voluntarily left his employment.
Accordingly the Tribunal finds that the claim under the Minimum Notice and Terms of Employment Acts 1973 to 2005 fails.
As to whether the claimant was on lay-offs between each contract and therefore had continuous service since his first fixed term in contract in 2007 the Tribunal finds as follows:
Section 9(5) of the Protection of Employees (Fixed-Term Workers) Act 2003 provides that the First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous.
Paragraph 3 of the said Schedule provides that a “lay-off shall not amount to the termination by an employer of his employee's service”. Paragraph 10 of the said Schedule goes on to provide that if “an employee is absent from his employment for not more than twenty-six weeks between consecutive periods of employment because of a lay-off such period shall count as a period of service.”
Although the letter dated 23rd January 2012 referred to the claimant being on lay-off the subsequent contract dated 27th January 2012 expressly stated the contract would terminate on 10th February 2012.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)