ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000860
Complaint(s)/Dispute(s) for Resolution:
|
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00002178-001 | 02/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00001214-001 | 02/12/2015 |
Date of Adjudication Hearing: 17/02/2016 & 22/06/2016
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
Complaint No. CA-00001214-001: The complainant wrote a letter on 30 November 2014 to the management of the respondent outlining serious concerns in relation to his employment. His line manager reacted angrily to this letter. Some days later the complainant and his work colleagues received notice of redundancy to take effect between January and March. The complainant was made redundant on 30 January 2015 but had been assured by his line manager that he and another worker would be re-employed as had occurred on a previous occasion. At this time the complainant lived on the estate with his family. On 9 February 2015 the complainant returned to work but was required to sign a weekly contract. He was assured by his manager that everything would be OK. The complainant believes that the respondent utilised this type of contract to avoid responsibility under the Unfair Dismissal Act. The complainant continued working until 13 July 2015 when his manager informed him that his contract was up and not to report for work the next day. There was no further communication until the complainant was called to the office on 30 July 2015 and handed an eviction notice in relation to the house on the estate. The complainant felt that he was treated differently and unfairly in relation to other members of staff. The complainant wrote to the respondent’s Managing Director seeking an investigation into his line manager’s behaviour. The complainant received a response about three weeks later despite the fact that he himself had not been interviewed. The response was entirely unsatisfactory. The complainant sought meetings with the respondent’s directors and deferment of the notice to quit the house but to no avail. Another colleague who wrote to the management in the complainant’s support also had his employment terminated. Complaint No. CA-00002178-001: The complainant’s other complaint is in relation to his rights under protected disclosure legislation as it pertains to the Unfair Dismissals Act.. The complainant submitted a letter to his line manager on 30 November 2014 relating to a number of changes to his terms and conditions of employment which had taken place without discussion or agreement and which the complainant felt amounted to victimisation, bullying, endangering the health and safety of individuals and failure to adhere to legal obligations. The line manager ultimately took the decision to terminate the complainant’s employment on 13 July 2015. The line manager was also responsible for the complainant’s subsequent eviction from his house on the estate. Following these events the complainant wrote to the Managing Director specifying the issues regarding the line manager’s behaviour and stating that he felt obligated to bring these matters to light to prevent further victimisation of other employees. These disclosures were related to the original disclosure. The complainant believes that the redundancy, dismissal, eviction and associated events were as a result of the November 2015 disclosure. The reason for the delay in presenting this complaint arose from the fact that the complainant was confused by instructions on the WRC complaint form website and only became aware that the issue regarding protected disclosure was not included when he received his notice of hearing. Following discussion with WRC staff he submitted his complaint on 26 January 2016. |
|
Respondent’s Submission and Presentation:
The complainant was not dismissed on 13 July 2015. The complainant was dismissed by reason of redundancy on 29 January 2015. The complainant accepted his statutory redundancy payment and signed a Severance Agreement in full and final settlement of all claims arising from the termination of his employment. Due to the need for the orderly closure of the Plant Nursery the complainant was offered the opportunity of temporary employment on a week to week basis on a series of contracts that specifically set out the purpose and scope of the contract and included a clause to the effect that the expiry of the fixed term without it being renewed would not constitute a dismissal. The complainant signed for each of these contracts.
With regard to the claim that the complainant was dismissed for having made a protected disclosure, the respondent submits that this complaint was made in excess of six months after the date of the alleged dismissal. The explanation put forward by the complainant does not meet the standard of reasonable cause required by the legislation. In addition, the complaints made by the complainant to the Managing Director, which he claims are a protected disclosure, were made after the 13 July 2015 and therefore could not have influenced the alleged dismissal.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
Issues for Decision:
Whether the complainant was dismissed on 13 July 2015 and, if so, whether that dismissal was fair within the provisions of the Unfair Dismissals Act 1977.
Whether the complainant was dismissed as a result of making a protected disclosure.
Whether the complaint in relation to the protected disclosure was submitted in accordance with the time specified in the Act.
Legislation involved and requirements of legislation:
Section 2(2) of the Unfair Dismissals Act states:
Subject to subsection (2A) this Act shall not apply in relation to –
(b) dismissal where the employment was under a contract of employment for a fixed term or for a specific 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 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.
Subsection (2A) states:
Where, following dismissal consisting only of the expiry of the term of a contract of employment of a kind mentioned in subsection (2) (“the prior contract”) without the term being renewed under the contract or the cesser of the purpose of the contract –
(a) the employee concerned is re-employed by the employer concerned within 3 months of the dismissal under a contract of employment of that kind made between the employer and the employee (“the subsequent contract”) and the nature of the employment is the same as or similar to that of the employment under the prior contract,
(b) the employee is dismissed from the employment,
(c) the dismissal consisted only of the expiry of the term of the subsequent contract without the term being renewed under the contract or the cesser of the purpose of the contract, and
(d) in the opinion of the adjudication officer or the Labour Court, as the case may be, the entry of 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,
then –
(i) this Act shall, subject to its other provisions, apply to this dismissal…
Section 6(2) of the Act states:
Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:
(ba) the employee having made a protected disclosure…
Section 8(2) of the Act states:
A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015 to the Director General –
(a) within the period of 6 months beginning on the date of the relevant dismissal, or
(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause.
Decision:
On the final day of the hearing written submissions were requested in relation to the protected disclosure complaint and both parties subsequently provided their submissions in this regard.
The complainant was employed as a general operative on a Agricultural / Horticultural Estate. He had originally commenced employment with the respondent in 2005 but his employment was not continuous. He was made redundant on 30 January 2015. The complainant worked 39 hours per week at €10.97 per hour. It should also be noted that the complainant resided with his family in a house on the estate having signed a caretaker’s agreement in August 2013.
The complaints are in relation to the termination of employment that occurred on 13 July 2015. On 10 December 2014 the respondent notified the Minister for Enterprise, Trade and Employment of the proposed redundancy of 7 workers in the Nursery Division of its operation. A consultation process was initiated with representatives of the workers. There is a dispute as to the genuineness of this process but the end result was that the respondent decided to proceed with the redundancies. On 15 January 2015 the respondent wrote to the complainant advising him of the intention to terminate his employment by reason of redundancy on 29 January 2015. On 30 January 2015 the complainant signed a severance agreement accepting a Statutory Redundancy Payment in full and final settlement of any claims arising from the termination of his employment. The complainant stated that in conversations during this period with his line manager he was led to understand that there would be employment for him after this date and, given that this had occurred on previous occasions, he was not surprised when he and a colleague were told that there was work for them a short time later. There followed a series of temporary contracts, each of one week’s duration, with a specific clause excluding the application of the Unfair Dismissals Act, 1977 in accordance with Section 2(2)(b) of that Act. The complainant was required to sign for each of these contracts. The complainant agreed that this was not in line with previous practice. The respondent stated that at the time of the redundancies there was still a stock of plants in the Nursery and that there was a requirement for two staff to be employed to ensure the orderly run down of that business. There was no means of knowing how long that operation would continue and that is why the temporary contracts were implemented. On 13 July 2015 the line manager informed the complainant that there was no more work for him and not to report for work the following day.
I have carefully examined the operation of the temporary contracts which commenced on 9 February 2015. I note that these contracts were not continuous. There were two breaks both of which were initiated by the complainant. The first break was in response to a request by the complainant to attend a tree surgery course, the cost of which he paid for from his redundancy money. This was from 8 March 2015 to 26 March 2015. The second break was from 2 April 2015 until 21 April 2015 and the complainant could not recall the purpose of this break. It is fully understandable that the complainant would want to investigate alternative employment opportunities but it would appear to me, therefore, that the complainant accepted these contracts as being temporary in nature and without the obligation of attendance at work of a normal contract.
In relation to the second complaint that the complainant’s dismissal was the result of having made a protected disclosure, I have first of all to consider the preliminary issue that the complaint was not presented in time. This complaint relates to the date of dismissal of 13 July 2015 and was received by the WRC secretariat on 26 January 2016. The complainant states that when submitting his original complaint in December 2015 he believed that a single complaint under the Unfair Dismissals Act would cover both grounds and only became aware of a difficulty in this regard when in January he received the notice of hearing which listed one complaint. The acknowledgement that was sent to the parties on 7 December 2015, however, would only have listed one complaint and the complainant had an opportunity at that stage to rectify matters. I cannot accept that an error in submitting a complaint falls within the ambit of “reasonable cause” as set out in the legislation.
It also seems to me that the claim that the complainant was dismissed as a result of making a protected disclosure does not have substance. The letter of November 2014 is a letter of grievance handed in to the line manager (albeit addressed “to whom it may concern”) which was verbally withdrawn a short time later. The letter of 31 July 2015 post dates the dismissal and therefore cannot be said to be the reason for the dismissal.
Finally, as I stated at the beginning of the hearing, disputes regarding caretaker’s agreements and the termination of same are outside my remit. I accept that the complainant and his family were in an invidious situation in relation to the decision by the respondent to terminate that agreement, particularly in the circumstances that they were then in and the precedent of another ex-employee still living on the estate.
Having regard to all of the above I therefore find as follows:
Complaint No. CA-00001214-001:
Having carefully considered all of the evidence and, in particular, the actual operation of the temporary contracts, I am of the opinion that these were specifically linked to the orderly sell-off of the Nursery stock and were not utilised for the purpose of avoidance of liability under the Act. The complaint therefore fails.
Complaint No. CA-00002178-001:
I do not accept that the complainant has established that a reasonable cause prevented the complaint being submitted within the timeframe set out in the legislation and accordingly this complaint fails.
Dated: 20th September 2016