UD72/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                      CASE NO.

John Paul Simpson     -claimant                                                                    UD72/2013

Against

Applus Car Testing Service Limited T/A National Car Testing Services Limited

-respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Mr N.  Russell

Members:       Mr J.  Browne

                        Mr F.  Dorgan

heard this claim at Dungarvan on 16th October 2014

                         and Waterford on 13th January 2015

Representation:

_______________

Claimant:        Ms. Ger Malone, SIPTU, Liberty Hall, Eden Quay, Dublin 1

Respondent:    David Andrews, Kate McMahon & Associates, Suite 223, The

                        Capel Building, Mary’S Abbey, Dublin 7

Determination

The conclusion of employment on the expiration of a Fixed Term Contract is a dismissal, however, the question is whether it is an unfair dismissal in the circumstances of any particular case.  Provided the Fixed Term Contract is in writing, signed by both parties and excludes the Unfair Dismissal Legislation and, further, is a genuine fixed term arrangement, no claim for unfair dismissal arises.

In a claim of unfair dismissal, the onus is on the Employer to satisfy the Tribunal that the dismissal is fair.   In the current case, the respondent’s position is that the claimant’s employment ended on the expiration of his last fixed term contract for operational reasons being, essentially, the commercial reality that he and a fellow employee were no longer required beyond the business’ busy period which was in the first half of the year.    It is the respondent’s position that there was a certain seasonality about its business in that there was a requirement for supporting fixed term workers in the first half of a year with a lower staff requirement in the latter half as the business faced a downturn pattern which had emerged.

The claimant’s case is that there was no justifiable and objective reason for the succession of Fixed Term Contracts under which he worked and that the evidence before the Tribunal clearly indicated a growing business.

The Tribunal has considered the evidence given and the documentation submitted at length.   Consideration has been given to the commercial justification offered by the Company as the reasoning behind the use of Fixed Term Contracts in respect of the claimant’s employment and as the rationale for the non-renewal of his contract in June 2012.

The Tribunal is not convinced by the evidence proffered on behalf of the respondent.  Indeed, the figures submitted to the Tribunal show growth year on year and, indeed, in the second half of 2012 as against the second half of the previous year.    The Tribunal cannot reconcile the respondent’s evidence that the Fixed Term arrangement was used to address the additional number of cars to be tested in the first half of each year with the fact that there was work for the claimant for a considerable period during second half of 2011 and yet no work for him in the latter half of 2012 when there was an increase in the number of cars tested as against the same period in 2011.

A witness for the respondent suggested that the reasoning was that there were additional staff in the Waterford Plant going into the latter half of 2012 but this witness was unable to support this contention nor to satisfy the Tribunal as to where this additional staff came from or had acquired an entitlement to be considered in preference to the claimant.

It was proffered as an explanation that some Fixed Term employees had been made permanent, however, it was confirmed on questioning that this did not increase the manpower hours available to the respondent from those individuals.

The claimant was resolute in his position that he was extremely busy when dismissed and that, for the latter half of 2012, after the termination of his employment there was no reduction in numbers working in the Waterford facility.

While the respondent suggested that the non-core staff levels were reduced from 6 to 4 during this period, no documentary evidence in the form of work rotas or otherwise was produced to support this contention.

The Tribunal has concluded that there was no objective commercial reason for the Claimant to be on a succession of Fixed Term Contracts nor to be dismissed on the 30^th June 2012.   It is the Tribunal’s view that the Claimant had a legitimate expectation that the he would be made permanent and that the pattern of Fixed Term employees being made permanent supports this view.

It is the Tribunal’s opinion that the use of Fixed Term Contracts was not dictated by demand for employees but was a mechanism being used as a performance tool.   An employee that did not achieve or exceed targets faced the non-renewal of his contract.   The Tribunal is of the opinion that the claimant was terminated on performance grounds and not because of the expiration of his contract.    The end of his employment was not determined by objective considerations but by an assessment of his performance.   Where there are performance issues with an employee there are clear procedures to be followed within a business and the employee has fundamental rights which must be respected.

The evidence before the Tribunal points to the claimant’s employment being terminated on a subjective assessment of his performance.

In arriving at this conclusion the Tribunal was impressed by the claimant’s evidence and accepts that his appraisals focused on his performance objectives as regards targets to be achieved and exceeded and was given to believe that he could expect permanency if his performance was good enough.    The Tribunal further accepts the evidence of the claimant that his personal productivity was the criteria that was to determine his future in the respondent.  He advised the Tribunal that he was informed by Mr. D that the more vehicles he tested, the better his chance of permanency.   Significant is that the respondent, having trained the claimant for the position, indicated no interest in maintaining a line of communication with him nor in enquiring as to his availability to return if there was future work for him.   Within 4 months of the claimant’s termination the respondent was advertising for operatives yet clearly saw no benefit in enquiring if the claimant was available and wished to return to the respondent.   In commercial terms, this is inexplicable and supports the view that there were issues around the claimant’s performance.

In this regard the Tribunal has placed significance on the evidence of Mr D to the effect that the claimant was “average” and achieved minimum targets but that this was “all he did”.    To the Tribunal this betrayed a dissatisfaction with the level of vehicles being tested by the claimant.   Mr. D did not dispute that he had complaints from the claimant as regards the volume of vehicles he was expected to test nor that he presented the claimant with evidence of the performance of others in an effort to improve his “efficiency” with high achievement emphasised.    Mr. D confirmed that he would have assessed the claimant’s “capability” as regards volume of vehicles tested.    This witness confirmed that his only explanation to the claimant that he was being dismissed for ‘Operational Reasons’.

The Tribunal’s findings are that the claimant was unfairly dismissed.   He was initially unable to get work as a mechanic but took a different position in an effort to mitigate his losses.   The hourly rate of pay was significantly lower.

The Tribunal awards the Claimant the sum of €15,000 by way of compensation.  This is in addition to the sum already paid by the company to the claimant by way of a redundancy/ex gratia payment.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)