ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000894

Complaint/Dispute for Resolution:

Date of Adjudication Hearing: 29/02/2016

Venue: Tom Johnson House

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977 and Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 and following the referral of the complaints/disputes to me by the Director General, I inquired into the complaints/disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints/disputes.

Background

The Complainant was employed as a General Operative from 24^th September 2011 to 7^th September 2015. He worked 40 hours per week and was paid €380.00 per week. He has claimed that he was dismissed to avoid a contract of indefinite duration. He has sought re-instatement.

1)    CA-00001105-001/002/003 Protection of Employees (Fixed-Term Work) Act, 2003

This claim was withdrawn.

2)    CA-00001105-004   Unfair Dismissals Act, 1977

Complainant’s Submission and Presentation:

His representative stated that there was no rationale given for the use of fixed term contracts. The final contract purports to exclude the unfair dismissals legislation. The respondent must be able to justify the termination of employment. He was called to a meeting without notice, not advised of his rights to representation and not given the right of appeal. The company could have used lay-off or redundancy if they had to rationalise but they didn’t. The real reason why he was dismissed was to avoid a permanent position.

Case law was supplied in support of this claim.

New staff have been recruited since he was dismissed. He has not worked since but has tried to mitigate his loss. He is seeking re-instatement.

Respondent’s Submission and Presentation:

The objective grounds for not issuing a permanent contract of employment was the significant financial pressure experienced by the company and the upwardly rent renewals.

The contracts of employment complied with the requirements of the Terms of Employment (Information) Act. He signed all the contracts and each one state that the Unfair Dismissals Acts shall not apply to the dismissal consisting only of the expiry of the fixed term of the contracts. This is common in fixed term contracts and he freely entered into these contracts. The contracts were honoured by the Respondent.

Throughout this employment the Respondent has suffered significant financial pressures. They have incurred financial losses and eight retail units have closed. They were unable to offer permanent contracts due to the volatility of the market place. By September 2015 the company was unable to offer a permanent contract. This also happened with a comparable warehouse employee. They met with him on 7^th September 2015 and tried to explain the position. He was paid two weeks notice. They reject the allegation that they tried to coerce him into signing a disclaimer. It was with regret that they were unable to maintain him in employment. Case law was cited in support of their position.

Findings/ Issues for Decision:

While this claim is taken under the Unfair Dismissals Acts nevertheless the Fixed Term Work Act informs the matter.

I find that none of the contracts contain objective grounds justifying the use of successive fixed term contracts.

It is noted that a letter was sent at the end of the employment stating that financial pressure was the reason for not offering a contract of indefinite duration.

It is well established by the Labour Court that general references to financial matters does not meet the requirements of responding to a real need.

I note that in the European Court of Justice Adeneler case on objective grounds it stated in Sec 69 states, “the concept of objective reasons …must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable in that particular context of justifying the use of successive fixed term employment contracts”.

Also in the European Court of Justice Bilka-Kaufhaus GmbH v Weber Von Hartz [1986] IRLR 317 case it ruled that in order for measures to be objectively justifiable they should correspond to a real need, be appropriate and necessary.

I find that the Respondent has not established that the sole use of fixed term contracts was meeting a real need, was appropriate or necessary. They could have used reduced hours, lay-offs or redundancy to deal with downturns in business but they chose not to do so.

I find that the Respondent has failed to explain why the last contract was not extended as happened with the previous ones.

I find that there was no objective reasoning behind that decision not to extend the contract on that occasion.

Therefore I find that the termination was used to avoid a contract of indefinite duration.

I find that the dismissal was unfair on substantive grounds.

I find that the Complainant was not given an opportunity to properly discuss the termination of his contract. He was not given the right of representation and appeal. I note that he was called to a meeting of which he had no prior notice and he left that meeting dismissed.

I find that the dismissal was unfair on procedural grounds.

I note that he has not worked since. I note that he has made efforts to mitigate his loss but there was no evidence of job applications from September to December.

In the Employment Appeals Tribunal case Sheehan v Continental Administration Co Ltd (UD858/1999) it stated, “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”.

Therefore I must find that the Complainant has not fully endeavoured to mitigate his loss.

I find that compensation is the appropriate redress for the unfair dismissal.

Decision:

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have decided that that the Complainant was dismissed in order to avoid a contract of indefinite duration.

I have decided that the dismissal was both substantively and procedurally unfair.

I have decided that compensation is the appropriate redress.

I award the Complainant €5,000 in compensation for the unfair dismissal, which reflects his failure to properly mitigate his loss.

I require that this compensation is to be paid by the Responded within six weeks of the date below.

Eugene Hanly

Adjudication Officer

Dated:   25^th May 2016