ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000209

Complaint for Resolution:

Date of Adjudication Hearing: 29/02/2016

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

Pursuant to the Unfair Dismissals Acts 1977-2007 and the Workplace Relations Act 2015 (as amended), following the referral to me by the Director General of this complaint of Unfair Dismissal contrary to Section 8 of the Unfair Dismissals Act 1977, I inquired into the complaint and gave the Parties an opportunity to be heard and to present to me any evidence relevant to the complaint.  I proceeded to hearing on 29^th February 2016 and both Parties were legally represented. Submissions and supporting documentation from both Parties were received before and during the hearing and all oral evidence, submissions and documentation have been taken into consideration. I also indicated that I would be relying upon the key statutory provisions and relevant case law in the area.

1. Preliminary Objections:

1. Counsel for the Respondent raised a preliminary objection to the jurisdiction of the Workplace Relations Commission (hereinafter ‘WRC’) to hear this complaint of Unfair Dismissal as being statute barred and/or out of time. In particular, she submitted that as the Complainant’s employment ceased on 10^th January 2015 on the natural expiration of her second fixed-term contract and her complaint was received by the Workplace Relations Commission on 16^th October 2015, this was over three months outside of the six month time limit under Section 8 of the Unfair Dismissals Act 1977. There is no dispute that the Complainant’s second fixed-term contract ended on 10^th January 2015 and a P.45 was issued on that date whilst she was on maternity leave. Nor is there any dispute between the Parties that Section 10(2) of the Maternity Protection Act 1994 provides that where an employee is employed under a fixed-term contract which expires before the day which would be the last day of maternity leave as in the instant case, the last day of maternity leave shall be the day on which the fixed-term contract expires, in this case being 10^th January 2015. Having availed of legal advice in or around May 2015 upon becoming aware of circumstances that led her to believe that she had a possible claim of unfair dismissal, Counsel for the Respondent contends that the Complainant unreasonably delayed in bringing her claim and accordingly she was not prevented from bringing her claim due to reasonable cause. In response to the Complainant’s submission that as she had been on maternity benefit, no losses had accrued at that stage and she had sought to mitigate her losses by seeking alternative employment, it was further submitted that she should have protected her position by lodging a complaint and withdrawing same if no losses had accrued.

    

2. Counsel for the Complainant submitted that the operative date in respect of which this complaint relates arose on or about 8^th June 2015, when the Complainant became aware that she had been unfairly dismissed upon discovering the full circumstances and facts surrounding the non-renewal of her second fixed-term contract. Based upon the Complainant’s evidence in this respect, it appears that she was under the apprehension that she had six months from 8^th June 2015 to bring this complaint. She also contended that there was no point in bringing a claim at that stage as she had not suffered any actual losses having been on maternity benefit up until then. She had sought to mitigate her losses by firstly looking for alternative employment and had in fact taken up a short term contract of employment from 24^th August and 31^st October 2015. It was in the knowledge that this contract was coming to an end without extension that led her to lodge her claim herein. In the alternative, Counsel argued that in the circumstances, the failure to present the complaint herein was due to reasonable cause and accordingly sought an extension of time placing reliance on Cementation Skanska -v- A Worker DWT0338.

    

3. There may have been some uncertainty as to whether Section 41(6) the Workplace Relations Act 2015 applies to claims for unfair dismissal and what is meant by “the date of the contravention” In fact, Section 80 of the 2015 Act directly amended the Unfair Dismissals 1977 Act such that the original requirements of Section 8(2)(a) remain relatively unchanged and a claim for redress must be initiated by giving notice in writing to the Director General “within the period of 6 months beginning on the date of the relevant dismissal”. The ‘date of dismissal’ in relation to a fixed-term contract is defined by Section 1 of the 1977 Act as the date “where a contract of employment for a fixed-term expires without its being renewed under the same contract…”. The fixed-term contract in respect of which this claim relates expired on 10^th January 2015. This date therefore constitutes the date of dismissal for the purposes of bringing a claim for unfair dismissal and was out of time by some three months. Section 14(1)(d)(ii) of the National Minimum Wage (Low Pay Commission) Act 2015 amended the 1977 Act to reduce the applicable standard for extending time up to twelve months from ‘exceptional circumstances’ to ‘reasonable cause’. I therefore have to determine whether the Complainant has shown reasonable cause for the purposes of extending time. In considering the meaning of ‘reasonable cause’ in Cementation Skanska -v- A Worker DWT0338, the Labour Court held: “…it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time. The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

    

4. The circumstances giving rise to this complaint are unusual in that the Complainant was apparently unaware that she might have a claim of unfair dismissal until in or around May-June 2015, some five-six months after the date of expiration of her fixed-term contract on 10^th January 2015. However the date of dismissal and not date of knowledge of a contravention is the operative date for a claim of unfair dismissal. Although I accept the Complainant’s evidence that she was under the apprehension that she had six months to lodge a complaint from in or around 8^th June 2015, ignorance of the law is not usually an excuse. However, I am also mindful that she had been on maternity benefit and had not accrued any losses up until that point so had firstly sought alternative employment before proceeding with a claim for unfair dismissal. Applying the aforesaid test to the instant case, I find this to be a reasonable explanation that both explains and affords an excuse for the Complainant’s delay in lodging her claim based on the facts and circumstances known to her at the material time. I am also satisfied that the delay is not excessive especially in the context of this complaint being heard within six months of lodgement and also do not consider that the Respondent has suffered any prejudice. I therefore exercise my discretion to extend time for lodging this complaint until 16^th October 2015.

    

5. Counsel for the Respondent also submitted that the Complainant is precluded from bringing her claim for unfair dismissal as Section 2(2)(b) of the Unfair Dismissals Acts 1977-2007 excludes dismissals where the employment was under a fixed-term contract which ceased on the expiry of the term and complies with its requirements. The fixed-term contracts in question complied with Section 2(2)(b) and were in writing, signed by both Parties and provided that the Unfair Dismissals Act shall not apply to a dismissal consisting only of the expiry of said contract.

    

6. Counsel for the Complainant accepted that the fixed-term contracts in question complied with the provisions of Section 2(2)(b) of the Unfair Dismissals Acts 1977-2007. However, she submitted that Section 2(2)(b) is subject to the provisions of subsection (2A) which amended the Acts to prevent the abusive use of successive fixed-term contracts of less than a year’s duration. Essentially it provides that where the dismissal consists only of the expiry of a fixed-term contract and the employee concerned is re-employed within three months under the same or a similar fixed-term contract and is then dismissed by reason of the expiry of that fixed-term contract, then the deciding body may examine that contract to see whether in its opinion “…the entry by the employer into the subsequent contract was wholly or partly for, or was connected with, the purpose of the avoidance of liability under this Act,…” In such case, the Act shall apply and the terms of the contracts may be added together to ascertain the period of service. No issue was taken by the Respondent with this interpretation of the law or that if so interpreted, the Complainant had the requisite twelve months service. The Respondent however strenuously denied that the second contract was in any way intended to avoid its obligations under the Act. As a determination on this point required the Parties going into evidence, it was deemed more appropriate to deal with this issue as the substantive dispute set out hereunder.

2. Respondent’s Submission and Presentation:

1. As the Respondent bears the burden of proof of showing that the dismissal complained of was not unfair, its Manager, Ms X gave evidence first. She explained that the Respondent is a not-for-profit organisation providing services within the community. She confirmed that the Complainant was initially employed as a part-time administration assistant on a fixed-term contract from 21^st May 2013 until 10^th January 2014. She confirmed that the Respondent had never previously employed anyone on a fixed-term contract or had the position of part-time administration assistant in place before hiring the Complainant. The fixed-term contracts were availed of as funding was uncertain and extra assistance was required to upgrade its files and office systems for the purposes of applying for a funding tender. As the tendering process had not progressed by the end of the Complainant’s initial contract and there were ongoing preparations in expectation of a site visit, her fixed-term contract was renewed for another year expiring on 10^th of January 2015. Ms X said she was also cognisant that the Complainant would have been out of work without its renewal. When the Complainant went on maternity leave on 28^th November 2014, Ms X hired her son on a temporary basis to cover for the Complainant’s maternity leave and fill in over the busy Christmas period. Thereafter there were a number of unexpected sick leave and holiday absences requiring him to cover administrative duties. Her son ended up remaining employed by the Respondent until 8^th May 2015 but was not replaced.

    

2. Ms X referred to notes of a meeting she had with the Complainant on 8^th September 2014, where she informed her that as the administration work required for the tendering process was reducing, the Respondent would therefore not be renewing her fixed-term contract when it ended on 10^th January 2015. In particular, the minutes noted: “I have encouraged (the Complainant) to get in touch when she feels ready to return to work and if there was any position she could apply.” Ms X also referred to an exit interview showing that the Complainant accepted this position and had been happy with her employment. The Parties had parted on good terms.

1. It was not in dispute that subsequent to hiring the Complainant on the first fixed-term contract, the Respondent had created a new position of a full-time administration role which was filled in or around December 2013. The Complainant had not applied for this position at the time.

    

2. Ms X gave evidence that she received notification on 16^th February 2015 that the Respondent’s tender application had not been successful. In or around April 2015, the person in the full-time administration role indicated she was emigrating and the position was initially advertised internally before being advertised publicly with FÁS in May 2015. Owing to the current economic climate, the advertisement attracted well in excess of one hundred and twenty applications including many highly qualified and experienced applicants with Masters and Business Degrees. The first successful applicant pulled out but the individual who got the job had 33 years of relevant experience. Ten applicants were shortlisted for interview and did not include the Complainant because they were better qualified and/or had more relevant experience. In relation to the Complainant’s allegation that she had failed to respond to her initial enquiries about returning to employment with the Respondent, Ms X said she had not intended to be rude but she was simply too busy and inundated with emails. However, she had responded to the Complainant’s follow-up text message and had also acknowledged her application for the full-time position. She also referred to an exchange of emails with the Complainant prior to her employment with the Respondent where she had expressed concern about her leaving a permanent position to join the Respondent on a fixed-term basis. The Complainant had indicated that she was happy to take that risk as she wanted the experience stating: “I understand I was initially concerned over the temporary position however I believe it would be a great opportunity for both of us even if something more doesn’t come from it, I will at least have gained new valuable skills which I hope should secure future employment elsewhere if that time should come.” Ms X also confirmed that she had absolutely nothing against the Complainant and that the only reason she had not been considered for the full-time administration assistant role was there were many more highly, and indeed overly qualified people ahead of her in the application process and “she wanted the best that money could buy”. Counsel for the Respondent offered the Complainant’s representatives an opportunity to examine the CVs for those who were shortlisted but this was not deemed necessary.

    

3. Overall, it was submitted on behalf of the Respondent that the fixed-term contracts used to employ the Complainant were genuinely for the purposes of facilitating the work required to prepare for a tender where funding was uncertain, and were not intended to circumvent any obligations under the Unfair Dismissals legislation. The Complainant’s part-time position had ceased and the subsisting full time position had been in place at the time of her employment. Having conformed with the requirements of Section 2(2)(b) of the Unfair Dismissals Acts 1977-2007 for fixed-term contracts, the Complainant’s employment lawfully ceased on 10^th of January 2015 and therefore could not be deemed unfair within the meaning of the Acts.

3. Complainant’s Submission and Presentation:

1. The Complainant confirmed that she was hired by the Respondent as a part-time administration assistant on a fixed-term contract from 21^st May 2013 until 10^th January 2014, against stiff competition. She was given a second fixed-term twelve month contract from 10^th January 2014 until 10^th January 2015. During her second fixed-term contract, the Complainant became pregnant and notified the Respondent that she was pregnant on 26^th June 2014 and her due date was 12^th December 2014. The Complainant submits that she was a model employee with over 18 months experience in the role. She had enjoyed a great relationship with her co-employees and had left on good terms with the Respondent’s Manager, Ms X.

    

2. The Complainant gave evidence that at her meeting with Ms X on 8^th September 2014, she was shocked to learn that her contract would not be renewed again as there was a need for her role. However she had accepted the position and indicated that she would like to return to work following her maternity leave should her position become available again. Ms X had advised her to contact the Respondent at that stage and assured that she would be welcomed back as she was a great asset. The Complainant commenced maternity leave on 28^th November 2014. Ms X’s son had been employed during some sick leave she had taken in early November 2014 and was retained to cover her maternity leave. As far as she had been aware her contract had ended on 10^th January 2015 and the Respondent had not employed anyone else to replace her.

    

3. The Complainant was subsequently made aware that this was not the case, and in fact Ms X’s son had been retained in her role until early May 2015. Also in April 2015, the Respondent advertised a full-time administration assistant role internally. The Complainant was not notified about this role directly. In the knowledge that there was a position being advertised internally, she contacted Ms X indicating her interest in returning to work by email but received no response. In response to a follow-up text message from the Complainant, Ms X had responded confirming that any positions becoming available would be advertised in the usual way.

    

4. The Respondent publicly advertised for a full-time administration assistant role in May 2015 without contacting the Complainant despite her having advised Ms X that she was seeking to return to work and was interested in a part-time or full-time position. Having seen the public advertisement on the FAS website, the Complainant applied for this role but was not even called for interview. On 8^th June 2015, the Complainant became aware that the Respondent had hired a full-time administration assistant and submitted that she had been completely overlooked for the role notwithstanding what she had perceived as Ms X’s prior promise of future employment.

    

5. The Complainant claims that the non-renewal of her contract of employment on 10^th of January 2015 and/or in May 2015 constitutes an unfair dismissal within the meaning of the Unfair Dismissals Acts. Specifically, it was argued on behalf of the Complainant that her contract did not naturally come to an end on 10^th of January 2015 as the Respondent continued to employ an administration assistant in place of the Complainant from that date onwards. Although she accepted that her role included assisting with the preparation of the tender application and/or alleviating another employee of work so that she could work on the tender, she took issue with the percentage of work relating to the tender which she estimated at approximately 15%. She contended that she was employed to undertake many other administrative duties and that the fixed term contracts did not specify that their purpose was to facilitate preparation for the tender. It was put to her by Counsel for the Respondent that this was in fact incorrect and the bulk of her work was towards the tender as indicated at interview. The fact that there was another full-time administration assistant role in place at the time of her part-time employment was not in issue. Nor was it contested that this was the position being advertised in April/May 2015 upon its current holder leaving to emigrate. The Complainant confirmed that she had not applied for the full-time position in December 2013 as she did not have childcare cover at that time and also had been unaware that it was a permanent position. However, she was available for full-time employment in relation to the April/May 2015 competition for the role in question.

    

6. Overall, it was submitted that the second fixed-term contract was not genuine and was used by the Respondent to circumvent its obligations under the Unfair Dismissals legislation. In particular, it was submitted that the non-renewal of the Complainant’s contract “wholly or mainly” arose from her going on maternity leave contrary to Section 6 of the 1977 Act.

    

7. Finally, the Complainant confirmed that she was seeking monetary compensation as a remedy. In this regard, she gave evidence of her attempts to mitigate her losses comprising of up to seventy job applications, but aside from the brief period between 24^th August and 31^st October 2015 she had unfortunately been unsuccessful in securing alternative employment to date.

4. Findings and Conclusions:

1. The Complainant’s disappointment at the Respondent not calling her for interview for the full-time administration assistant role is totally understandable given her previous good record of employment with the Respondent and her belief that she would be considered favourably for any positions becoming available in the future. Perhaps if her requests to be considered for available work had received more attention from the Respondent she would not have felt the need to pursue this complaint. Also had she secured long-term alternative employment it is unlikely that this claim would have arisen. However my remit in this matter is confined to considering whether or not the second fixed-term contract was used by the Respondent wholly or partly for the purposes of circumventing its obligations under the Unfair Dismissals legislation.

    

2. I note that the minutes of 8^th September 2014 list the Complainant as undertaking a range of administrative duties which do not specifically refer to the tender application. Whilst I accept the evidence on behalf of the Respondent that the fixed-term contracts were utilised for the purposes of preparing a tender application in circumstances where funding was uncertain, during the second fixed-term contract the role appears to have morphed over time into a more general administrative role. However I am satisfied that renewal of the fixed-term contract was primarily to facilitate ongoing work with the tendering application where the funding situation of the Respondent remained uncertain, and that the Complainant was well aware of this position at the material time. I further note that the Respondent’s Manager’s son continued to fill the Complainant’s role until in or around 8^th May 2015, some four months beyond the date of expiration of the Complainant’s second fixed-term contract on 10^th January 2015. There was no evidence to suggest that the extension of this temporary cover was not to cover unforeseen needs as contended. I also consider it relevant that the uncertain funding situation continued when the Respondent was unsuccessful in its tender application in February 2015. Whilst I am not entirely convinced that the second fixed-term contract ended solely as the work for the tendering process was coming to an end, I am satisfied on the balance of probabilities that this role definitely ceased on or about 8^th May 2015. Based upon Ms X’s evidence which was unchallenged in this respect, I am also satisfied that the position advertised around the same time was not the Complainant’s part-time position but the existing full-time position.

    

3. As cited by Kerr in Employment Legislation to assist with interpreting subsection (2A), in the English case of Terry -v- East Sussex County Council (1978) I.C.R. 536, it was held that whether the expiry and non-renewal of a fixed-term contract constitutes a substantial reason for dismissal depends upon whether “the case is a genuine one where an employee has to his knowledge been employed for a particular period… on a temporary basis” and a balance has to be drawn between the need for protection for employers who have a genuine need for fixed-term employment, which can be seen from the outset not to be ongoing, and “the need for protection of employees against being deprived of their rights through ordinary employments being dressed up in the form of temporary fixed-term contracts.” Applying this balancing exercise to the instant facts, I am not of the opinion that the entry by the Respondent into the second fixed-term contract was “…wholly or partly for, or was connected with, the purpose of the avoidance of liability under this Act,…” based on the following findings of fact:

• There is no issue that the fixed-term contracts utilised herein fully complied with the legislative requirements under Section 2(2)(b) of the Unfair Dismissals Acts 1977-2007.

   

• I accept that the Respondent had short-term administrative needs and an uncertain funding situation and that these were the primary reasons for employing the Complainant on two successive fixed-terms contracts.

   

• I am also satisfied that the Complainant was well aware that renewal of the first fixed-term contract was primarily to facilitate ongoing work with a tendering application in circumstances where the Respondent’s funding situation remained uncertain.

   

• There is no issue that the Respondent’s Manager had flagged the fixed-term nature of the initial contract in advance of the Complainant taking the position up and her concerns around same and the Complainant had accepted the initial fixed-term contract on this basis.

   

• I am also satisfied that the Respondent’s Manager advised the Complainant in advance of the expiry of the second fixed-term contract that it would not be renewed and the role was not in fact renewed beyond 8^th May 2015.

   

• There is no dispute that the position advertised around the same time was not the Complainant’s part-time position but was in fact for an existing full-time position.

   

• Overall and particularly as maternity cover had been arranged so there would have been no reason for the Respondent to let the Complainant go owing to her maternity leave, I find that the Respondent’s conduct was not consistent with the assertion that the non-renewal of her contract was “wholly or mainly” related to the fact that she had gone on maternity leave.

5. Decision:

1. Based on the aforesaid reasons, I find that the Complainant was not unfairly dismissed by the Respondent pursuant to Section 8 of the Unfair Dismissals Act 1977 and therefore her claim fails.

Dated: 8.4.2016