EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1049/2014
APPEAL OF:
Shane Dalton - appellant
against the recommendation of the Rights Commissioner in the case of:
City Of Dublin Education & Training Board - respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. D. Mac Carthy S C
Members: Mr E. Handley
Mr. S. O'Donnell
heard this appeal at Dublin on 27th August 2015 and 3 November 2015.
Representation:
Appellant: Mr. Cathal McGreal B.L. instructed by Mr Ronan Brennan, Brennan & Co, Solicitors, Denshaw House, 121 Lower Baggot St, Dublin 2
Respondent: Ms Katie Doyle, IBEC, 84/86 Lr. Baggot Street, Dublin 2
On 27th August 2015
Mr. Ian O’Herlihy, Mason Hayes and Curran, South Bank House, Barrow Street, Dublin 4
On 3rd November 2015.
This case came before the Tribunal by way of the appellant (the employee) appealing against the Recommendation of the Rights Commissioner (ref. r-141169-ud-13/MMG).
The determination of the Tribunal was as follows:-
Preliminary Issue:
The respondent’s representative raised as a preliminary issue that the appellant had been employed on fixed term contracts. A clause stipulated in the contracts was that “the Unfair Dismissals Act 1977 shall not apply to a dismissal consisting of the expiry of the fixed term of this contract without it being renewed”.
She contended that the Tribunal had no jurisdiction to hear the case as per Section 2(2) (b) of the 1977 Act.
The first contract referred to “Commencement Form 2010-2011” and was signed by the appellant on 6th October 2010.
The first written contract was for the period 2nd September 2011 to 31st August 2012.
This contract contained a clause that the Unfair Dismissals Acts, 1977 shall not apply to a dismissal consisting only of the expiry of the fixed term of this contract without it being renewed.
The second written contract for period 1st September 2012 to 31st August 2013 contained the same clauses as the first written contract.
Both these contracts contained a clause “Probationary Period”.
The respondent responded that the contracts were Standard Contracts of Employment.
Section 2(2) (b) of the 1977 Act provides:
“(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 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 13 of the 1977 Act provides:
“A provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of this Act) shall be void in so far as it purports to exclude or limit the application of, or is inconsistent with, any provision of this Act”.
Section 2(2) (b) and Section 13 have to be reconciled. At first sight they might appear to contradict each other, but clearly the Oireachtas, when putting both provisions into the same statute, had a rational intention. In many cases over the years the Tribunal has reconciled these two provisions by construing section 2(2) (b) strictly.
In the present case the use of the words “probationary period” in the second contract, just repeating the term of the first contract, seems to run counter to the argument that this was a fixed term contract as contemplated by Section 2(2) (b) when interpreted strictly.
The Tribunal therefore holds that the appellant is not excluded from the terms of the Act.
Respondent’s Case:
The respondent’s funding is provided on an annual basis on foot of an allocation provided by the Department of Education and Skills. The allocation is negotiated and is clearly related to the number of students in schools/colleges. Following a Labour Court decision persons engaged by the respondent as Tutors were characterised as teachers. Eleven tutors were accommodated and made permanent. At the same time due to a cut to pupil teacher ratio very significant cuts were required to staff. A question arose as to whom to let go. It was clear that neither those on contracts of indefinite duration nor permanent staff could be let go. The appellant had been treated as a teacher on a fixed term contract and was let go accordingly. The “Last-in-first-out” rule was applied.
Appellant’s Case:
Counsel for the appellant argued that the respondent’s case did not amount to a substantial ground justifying dismissal and relied on the Tribunal decision in Sengupta –v- Health Service Executive [2012] 23 E.L.R. 205.
Counsel argued that the respondent chose to dismiss the appellant rather than other staff only because he was on a fixed term contract.
Determination:
Section 6(1) of the Unfair Dismissals Act provides:
“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.
Section 6(6) of the Unfair Dismissals Act provides:
“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.
The Tribunal had difficulty understanding how the respondent’s case fits in within the above two subsections.
There seemed to be an aspect of redundancy in the case but the respondent did not regard it as redundancy or treat it as such. The respondent’s witness said it was not ‘permitted to make redundancies’.
The ‘other substantial grounds’ mentioned by the respondent’s solicitor were very unclear and seemed to be based on the fact that the appellant was on a fixed term contract. The respondent’s witness also said he was not directly involved in the appellant’s dismissal.
The Tribunal determines that the respondent has failed to discharge the onus under Section 6(6) of the Unfair Dismissals Act, 1977. The dismissal is therefore deemed to be unfair under Section 6(1) of the Unfair Dismissals Act, 1977.
Redress:
Both parties agreed that it should be placed on the record of the Tribunal that an offer of employment was made and accepted with effect from 3rd November 2015 on the salary scale to be determined in accordance with the Department of Education and Skills incremental salary scale.
The respondent reserved its right to appeal but formally stated that the outcome of any such appeal would not adversely affect the position offered to the appellant.
The Tribunal determines that the appellant be re-engaged on the following terms:
(a) His re-engagement take effect from 3rd November 2014 (12 months prior to the final date of hearing)
(b) His remuneration to include €38,266.00 being one year’s back pay
(c) For all purposes other than payment of remuneration the service after re-engagement shall be deemed to be continuous with his earlier service under his contract of employment.
Accordingly, the appeal under the Unfair Dismissals Acts, 1977 to 2007 succeeds.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)