ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000864
Complaint for Resolution:
|
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00001225-001 | 03/12/2015 |
Date of Adjudication Hearings: 15 March 2016 and 11 July 2016
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Respondent’s Submission and Presentation:
The complainant, a Solicitor, joined the respondent centre via the Job Bridge Programme and worked from 6 December 2011 to 13 August 2012. This was followed by a period of voluntary work .The complainant was subsequently employed by the respondent as a temporary solicitor on two separate, but successive fixed term contracts.
26 August 2013- 29 August 2014
30 August 2014 - 29 August 2015
The contracts were issued by the Dept. of Public Expenditure and Reform. The respondent submitted that approval for these contracts necessitated an arduous approvals process. Both contracts were signed by both parties, and specifically provided that the appointment was for a fixed term and therefore not covered by the Unfair Dismissals Acts. Each of the contracts specifically provided that the complainant was to have “no further entitlement to employment beyond 29th August 2014 and 29 August 2015 respectively “.
The respondent denied that the complainant was unfairly dismissed and sought to rely on the terms of Section 2(2) (b) of the Unfair Dismissals Act which provides for an exclusion clause. The complainant was dismissed by reason of the expiry of her fixed term contract. There was a reference to performance issue pertaining to the complainant but these were not subject to a disciplinary process.
An issue arose at the respondent centre in February 2015 with regard to a shortcoming in a clients file. This placed the centre at risk of litigation and prompted a broader review of the complainant’s active files. The complainant was responsible for the file omission. A report was received from the Regional Manager, Ms RM, on 28th May, 2015. The complainant was informed by the Director of HR of the decision not to issue a new contract on July 10, 2015. This was appealed by the complainant, however, the decision stood. The complainant finished work at the centre on August 29, 2015.
The position, held on a temporary basis by the complainant was subsequently sanctioned by DPER for permanent filling in September 2015. The complainant competed for the position and was placed 9th on a panel. The position in the centre has since been filled on a permanent basis.
It was the respondent’s case that they had legitimately used both the Job Bridge Scheme and the succession of fixed term contracts in the instant case within the limitation period known as the “Moratorium “in the public service. The contracts had expired through the effluxion of time. The performance issued referred to had caused the respondent to face litigation on the issue .
Evidence of Mr HR, Director of Hr.
Mr Hr provided a back drop to the recruitment of the complainants position against the moratorium in the Public service .From 2008, there had been a 16% decrease in staff available to the service set against an 80% increase in client demand for the service.
The service had sought approval for the employment of a temporary solicitor in the first quarter of 2013 and received the approval to hire from Department of Public Expenditure and Reform . The service had sought approval for a 24 month extension to this contract in 2014.
Mr Hr was involved when performance issues were raised by the Director of service and he was aware that an extensive review had been undertaken by the regional manager. He wrote the letter of July 10th to the complainant which informed that the complainant’s contract was not to be renewed on expiration on 29 August 2015. He referred to performance issues as a contributory factor for the decision .He discussed the letter of appeal with Mr MS , line manager and Mr DS, Director of service and the position was unchanged ,the complainant worked out the duration of her contract and he did not have any further involvement with the complainant due to his own annual leave .
By October 2015, the moratorium had been relaxed and additional monies were available. The service was sanctioned for a permanent appointment to the role of solicitor. DPER had sanctioned a 6 month contract to replace the complainant in the interim to address the high volume of work .The Public Body ran the competition for the permanent position ,informing all existing staff on fixed term contracts and the successful candidate was due to start . The complainant was placed 9th on the panel, which is due to be in existence for a period of 12 months. Mr Hr submitted that it was most unlikely that the complainant would be elevated from her panel placing.
On cross examination, Mr Hr confirmed that he had consulted with the Director of Services, Regional Manager, Personnel and the complainant’s line manager before communicating his decision on July 10th. The decision was informed by all four colleagues. He confirmed that he had not had discussions with the complainant during this period. The matter was dealt with as an expiration of the contract.
He was aware that a review of the complainants work was being undertaken by the Regional Manager and had been in discussions with the Director of service. There were no notes or minutes on these discussions as they were the product of daily communications. He was aware of the performance issue which had caused concern at the centre. He believed that he had seen the report compiled by the complainants line manager but was not certain who had sent it to him .He reviewed the document and noted the description of the caseload was not untypical. There were delays identified in 26 cases and the risk involved in the missed cases was determined “too great”. Mr Hr was not clear whether the complainant had received the additional pages attached to the report. He was not in a position to explain the redacted reports received by the complainant via the data protection process.
Mr Hr recalled that that the question of the contract renewal was raised by the Director of services on 18 May 2015. In response to questions on whether fair procedures had been applied to the complainant, Mr HR submitted that it was not a dismissal, the contract came to an end and the Unfair Dismissals Act did not apply .He submitted that the only reason for non renewal of the contract was the expiration of the fixed term contract .He disputed that the renewal of the contract was treated separately to the expiration. He refuted that the deliberative process had been confined to the exchange of letters or that fair procedures had been disregarded in the case. In answer to questions from the Adjudicator, he stated that redundancy was not an issue .
Respondent Supplementary Submission
On 28th June 2016, the respondent alerted the WRC that following consideration of the Complainants written submission together with the evidence of Mr HR , they were satisfied that the case would stand or fall on the interpretation of Section 2(2)(b) of the Unfair Dismissals Act 1977-2015. Their case was then concluded on legal submissions without recourse to further witness testimony.
Three substantive issues were identified based on the complainant’s submission.
1 Whether the first of her fixed term contracts was in fact, a fixed term contract?
The respondent disputed that the waiver, on which they relied had to be in place when the employment term commenced. This is not stated in the Acts .Neither was there an objection raised by the complainant at the outset. The respondent cited the authorities of
1 O Cuinnegain v Guardian Angels National School UD 1008/2006, which was later upheld in
2. Gerard Kemmy V Amgen Technology UD 1979/2013.
In support.
They submitted that the delayed signature did not nullify the application of S2(2)(b) of the UD Acts .The second contract was signed by both parties in advance of the commencement date which pointed to a continuity of fixed term contracts up until August 29, 2015.
2 Whether the provisions of s.2 (2) (b) of the Unfair Dismissals Acts are satisfied in terms of the wording of the Complainants fixed term contracts.
The respondent contended that both contracts were comprehended by the exclusion clause pertaining to S. 2(2) (b) of the Act as
- Both contracts were in writing.
- The temporary solicitor grade was stipulated in the contract
- Both contracts contained the wording necessary to engage the exclusion clause of S2 (2) (b)
- The employment period was not covered by the Unfair Dismissal Act.
- Forms of acceptance were signed by both parties and referred to Temporary Solicitor, Fixed term appointment and an understanding that the no further entitlement to employment flowed beyond the cesser date.
- “Only on expiry “is engaged by operation of the above aspects of the case.
The complainant was aware of the impending expiration of the contract when she sough t a renewal in her letter of July 24th. The respondent pointed to the complainant seeking either a renewal or an extension of contract in her email to the personnel officer on 18 August as proof of the distinction between the contracts sought.
3 Whether the performance issues identified in relation to the Complainant prohibits a reliance on s 2(2) (b) of the Act, by the respondent?
The respondent contended that the non granting of a new contract was treated separately in the letter of 10 July by reference to performance issues. They submitted that the Unfair Dismissals Act does not apply to the granting of new contracts of employment.
The respondent argued that the complainant had misinterpreted the waiver clause and the Legislator did not intend that automatic entitlement to further employment would flow on the renewal of a fixed term contract. The respondent was not in a position to renew the contract as DPER had not sanctioned any further employment in the role.
The respondent submitted that there was a clear distinction between the words new contract and renewal of contract and linked any reference to performance issues to the pillar of “new contract “. There was no scope available for new contracts. The service had sought access to new contracts for of 24 month term in 2014, but was unsuccessful.
The respondent submitted that neither re-instatement nor re-engagement were a veritable option open to the Adjudicator on this occasion as there are currently no positions available and the complainant was not entitled to “leap frog” the public body panel.
Complainant’s Submission and Presentation:
The complainant was employed by the respondent as a solicitor on two successive contracts. The first temporary contract was effective from 26th August, 2013 to 29th August, 2014, which was signed by the complainant on 17 September; 2013.The second contract was for the period of 30 August 2014 to 29August 2015.
The complainant was informed by way of letter dated 10 July, 2015 that her contract was to expire on August 29, 2015.
“I am writing to advice you that the Board has decided not to offer you a new contract of employment on the expiry of your current contract. In reaching this decision, The” Public Body” has taken into account issues about your performance that have been raised with you by your manager “
The complainants case was introduced as not just encapsulating an expiration of the contract under the Protection of Employees, Fixed Term Act , 2003 but a case where “ performance issues “ formed a considerable background , thus placing the case under the realm of the Unfair Dismissals Act .Public Bodies cannot be excluded from accountability in the case .
The complainants counsel contended that the particular section of the Unfair Dismissals Act, Section 2(2) (b) on which the respondent relied on to argue an ousting of jurisdiction, /waiver needed a careful examination as it was invalid. The word “ only “ would become central to the arguments as it was not engaged by the respondents in the contractual undertakings with the complainant .In addition, there was a gap in time between commencement of the first contract and both parties signatures being recorded . It was submitted that it cannot be valid to retrospectively validate a statutory exclusion and this must be strictly interpreted .If a contract is to incorporate statutory rights, then it must be done in advance .The” contra proferentem” rule applies and neither of the contracts are properly fixed term contracts .
The complainant relied on the inclusion of 1(c ) (c) of the Act , the definition of dismissal in relation to fixed term workers and argued that the respondent was bound to follow fair procedures in this regard and be prepared to offer a defence for the dismissal as set down under the Act . They drew the Adjudicators attention to an earlier draft of a letter of termination submitted in the case documents which was sent to Mr HR by the Director of Service . They contended that this amounted to pre-determination that conduct was the reason for dismissal. As no evidence was given on justification of dismissal, it must be seen as “automatically unfair”.
The complainants representatives submitted that the heavily redacted documents received from the respondent were unsatisfactory but still addressed the premise that the respondent had considered the complainants termination of employment based on matters other than the mere expiry of her fixed term contract. They submitted that Dismissal is defined in the Unfair Dismissals Act as including the non renewal of a fixed term contract at its expiry.
The complainant sought the remedy of re-instatement.
Evidence of the Complainant:
The complainant qualified as a solicitor in 1993.She had a range of experience in both the District Court and circuit Court through her work in a range of practices .She was unemployed during the recession and elected to try a Job Bridge Programme with the respondent for a 9 month period on 5 December, 2011, following which she volunteered at the centre for an 11 month period .She competed for the job of temporary solicitor at the end of November, 2012, did two interviews and was panelled. She commenced work at the respondent centre as a paid employee in August 2013. There was a high case load at the centre and there was no difference between this workload whilst engaged on either Job Bridge, Volunteer or contracted employment.
The complainant submitted that she had scored 5 in a rating of 1-5 in the Management Development Systems performance appraisal. This was reflected as outstanding in the criteria applied.
The complainant acknowledged that there had been an issue with a particular file; it was her first file of that category. There had been no direct discussions with her on her performance. She was aware of her omission on the file and acknowledged that she had made a mistake.
On 13 July, in a conversation with her manager, she learned that she was to receive a letter from the respondent informing her that her contract was not being renewed. She received the letter the next day and sought to contact Mr Hr at his Office. She was stunned that that the case on which there was an omission was taken into consideration. She was aware that action had been taken on the file. The complainant described her stress. She applied herself to her work and when her appeal was unsuccessful , she worked out her contract. She described a very busy working environment.
She was exhausted at the end of the contract and applied herself to securing her CPD points and applied for locum work. She received a call on 4 September from her former line manager, who informed her that nothing would be done in terms of seeking a way back to work at the centre .On 23 rd. September, she was informed that a retired solicitor had been sent to help out at the centre .She applied for the permanent posts advertised by the respondent in December 2015 and was placed 9th on the panel.
The complainant commenced in her current post as locum solicitor on January 2nd 2016 .This was due to expire on July 29th 2016.She asked for redress in re-instatement as she had worked well with the staff there .
In cross examination, the complainant confirmed that she was an experienced solicitor and that she understood the fixed term nature of the first contract when she signed it on reception. The contract was of a temporary nature and for a defined term .Counsel for the respondent reaffirmed that the Unfair Dismissals Act did not apply .There was no recorded objection by the complainant on the Form of acceptance. The complainant confirmed that she understood the second contract also.
In answer to counsels questions, the complainant stated that she had omitted to include a necessary component in an important file in the course of her work .She denied anticipatory knowledge of her termination of employment before July 10.She did not know that her performance was causing an issue for the respondent and did not know about DPER having to sanction posts, as it was not discussed with her. Up until the first day of the adjudication hearing, the complainant understood that the respondent Board made decisions on employment and not just Mr Hr.
She prepared her appeal of the July 10 letter to seek to secure a renewal of the contract as she just wanted to continue to work at the centre. She tried to engage with personnel, but was unsuccessful .She told Counsel that she cried at the expiration of her contract.
The complainant then confirmed that she saw no distinction between a renewal and a new contract when asked by her counsel. There was nobody from the respondent available to speak to her at the conclusion of the contract bar a Mr F and Ms Mc D in the administration section of the respondent ,neither of whom had a working knowledge of her file .
The complainant understood that she would be eligible for a contract of indefinite duration by the 5 December 2015 and this underpinned her application for an extension of her contract to 27 November to meet this requirement. The complainant confirmed that she initiated the request to renew her contract in May 2014 and this was acceded to.
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.
Issues for Decision:
I have to decide whether the complainant is entitled to make a claim for unfair dismissal, in particular whether the series of fixed term contracts under which employment occurred excluded her from the protection of the Unfair Dismissals Acts.
Legislation involved and requirements of legislation:
Section 1(c) (c) of the Unfair Dismissals Act, 1977,
Dismissal in relation to an employee means:
(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract 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), the cesser of the purpose;
Section 2 of the Unfair Dismissals Act 1977, provides a number of exclusions to the operation of the Act:
Subject to subsection (2A), this Actshall not apply in relation to—
2(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 censer aforesaid.
(2A) 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 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,
then—
(i) this Act shall, subject to its other provisions, apply to the dismissal, and
(ii) the term of the prior contract and of any antecedent contracts shall be added to that of the subsequent contract for the purpose of the ascertainment under this Act of the period of service of the employee with the employer and the period so ascertained shall be deemed for those purposes to be one of continuous service.
(2B) In subsection (2A), ‘antecedent contract’, in relation to a prior contract, means—
(a) a contract of employment of the kind mentioned in subsection (2) the term of which expired not more than 3 months before the commencement of the prior contract, or
(b) each of a series of contracts the term of the last of which expired not more than 3 months before the commencement of that of the prior contract and the term of the other or of each of the other contracts in the series expired not more than 3 months before the commencement of that of the other, or the next, contract in the series,
being a contract or contracts made between the employer and the employee who were parties to the prior contract and the nature of the employment under which was the same as or similar to that of the employment under the prior contract.
(b) In this subsection “term of the contract” means the whole of the period from the time of the commencement of work under the contract to the time of the relevant dismissal.
Decision:
I have carefully considered the extensive documentation and evidence adduced in this case. I am immediately struck by the back drop to the setting of the case as concurrent with the limitation period known as the “Moratorium “in the public sector. In this case, that period is described as running from early in 2009 to a relaxation notified in August, 2015 with a reference to retrospective effect to January 1, 2015. This was an extraordinary period in the Irish Civil and Public service and I find that events that unfolded in the case cannot be viewed in isolation from this supervening event. The Moratorium on employment control is a material fact in the case. However, I must now address the overall facts of the case as submitted by the parties.
The respondent has relied on the exclusion provision of Section 2(2) (b) of the Unfair Dismissals Act of 1977-2015 to contend that the Act does not apply to the complainant’s termination of employment on 29 August 2015. They have made some very clear and cogent statements in support of this contention. They submitted that the effluxion of time terminated the contract, with the full awareness, consent, and anticipatory knowledge of the complainant and application of the waiver in s.2 (2) (b) .They contended that there was no dismissal.
The complainant sought to rebut this argument and argued for the protection of the Act in this case based on a contention that the dismissal was covered by S1(c) (c) of the Act and was not excluded by virtue of the operation of section 2(2) (b) .In additions, they contended that the contract was not a true fixed term contract.
The Law:
Section 1(c) (c) of the Unfair Dismissals Act, 1977, provides for three definitions of dismissal.
Dismissal in relation to an employee means:
(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract 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), the cesser of the purpose;
The Irish Courts at EAT and Labour Court level have not habitually allowed fixed-term contracts to be abused; and that approach is completely consistent with the spirit of Directive 1999/70(Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP) transposed into Irish Law in Protection of Employees (Fixed Term Work) Act, 2003. In the instant case, the respondent understands that the argument expounded by the complainant is not one of abuse but rather a sooner than expected termination of employment.
I find based on the evidence adduced that a dismissal occurred in accordance with 1(c)(c ) of the Act. There are a number of anti avoidance measures contained within the Unfair Dismissals Acts which require me to scrutinise both contracts issued in this case.
Section 13: Voidance of certain provisions in agreements.
- —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.
I find that there is a strong requirement to examine the circumstances that prevailed from the issuing of the first contract of employment to the date of cessation of employment on August 29, 2015. This is necessary in view of the conflict which exists between the parties on the interpretation of the contracts.
The respondent submitted copies of the approvals process which preceded the appointment of the complainant to direct employment on 26 August, 2013. By that time, the complainant was known to the respondent for a period of almost 2 years. The sanction issued from DPER on July 2, 2013.
“ ….. Based on the business case made, sanction is given as an exception to the moratorium on promotion and recruitment to appoint 7 Solicitors on fixed term temporary contracts of 12 months duration …..”
This brought Contract 1 into being.
Contract 1 26 August 2013 – 29 August 2014.
This contract had 17 components and was appended by a Form of acceptance as rightly stated by the respondent .It was signed on 18 September, 2013 with an effective date of August 26th.
It covered the Period of employment as:
“The appointment of the solicitor which is strictly temporary will be from 26 August 2013, to 29 August, 2014. The appointment is for a fixed term and is not covered by the Unfair Dismissals Acts “
Section 2(1) of the Unfair Dismissals Act, 1977 provides exclusion for employees with less than one year’s continuous service at the date of dismissal. I find that this insertion complies with section 2(1) of the Act, at this juncture.
Contract 2 August 30, 2014- 29August 2015
The respondent produced a copy of the business case submitted to DPER on 25th April, 2014 for an extension to the complainant’s contract.
“ …. The Board would also request that the sanction for up to 12 temporary solicitors be extended for a period of 24 months ……………”
It is the respondent’s case that DPER had not sanctioned an extension of the contract past the end date of 29 August 2015. Apart from the evidence of Mr HR and the summations by the respondent that renewal of the contract was outside their gift ,I find it somewhat startling that in a process marked by the stringent ,even arbitrary regulations of the moratorium that the sole background document opened to me of the contract renewal was actually contract 2 itself .
Therefore, I find that there was an inconsistent approach in the approvals process adopted by the respondent which casts some doubt on the evidence of Mr HR. It remains unclear to me, just who sanctioned the renewal and what was the duration of that term of renewal of the second contract ?
This contract had 16 components as the clause on probation was removed. In all other circumstances, the contract mirrored the terms of contract 1 inclusive of the form of acceptance signed on 1 August 2014.
I have a difficulty with this contract on two grounds before I move on to examine the application of S. (2(2)) (b).
First Issue
By the date of operation of the second contract, 30 August 2014, the complainant had exceeded the one year continuous service requirement mandated in section 2(1) of the Act. Therefore, I find that her continuous service rendered the exclusion clause referred to as S2 (1) (a) inoperative on a purposive interpretation of the Act.
Section 13: Voidance of certain provisions in agreements.
- —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.
The reference , therefore, in contract 2 to the contract not being covered by the Unfair Dismissals Acts on the aspect of tenure to ground a claim must in my opinion be deemed as void on foot of the anti avoidance measure pertaining to Section 13 .
Second Issue
In academic commentary Mary Kelleher, in “It’s a Fix, A review of the restrictions on the renewal of fixed term contracts in the Public Service”, Irish Employment Law Journal, 2012, 4, 108-111 predicted that:
“If fixed term contracts are not renewed as a result of the moratorium, there is a risk that employees who have been employed on “rolled over” contracts for some years may take claims for Unfair Dismissal”
She went on to detail cases taken under the fixed term legislation, which succeeded on complainants of penalisation under S.13 of the Protection of Employees (Fixed term Act) 2003, in particular,
1 Vivian Maguire v Health research Board (r-091553-ft-10/JC), where the then Rights Commissioner found that the failure to renew the fixed term contract constituted penalisation.
“ While the Rights Commissioner did not expressly hold that the moratorium was not a sufficient defence for the non renewal of the fixed term contract , the decision could be interpreted in this way , given that this was the reason as to why the employer could not renew the contract in the first place “
While this case is not taken under fixed term legislation , I find that I must make a short comment on the apparent absence of a document in writing issued by the respondent to satisfy the “objective grounds” justifying the renewal and the failure to offer a contract of indefinite duration “ as required under section 8 of that Act . Neither party produced this in evidence covering the renewal of contract no 2.When I asked the complainant about the renewal process , she recalled that she herself had initiated the renewal process during April/May 2014 and again in 2015. The complainant recalled that nobody discussed the approval process with her and she assumed that the respondent Board made the requisite decisions on her employment. If the respondent had secured an approvals process for at least 7 solicitors in 2014, I continue to find it remarkable that the renewals process is lacking in the required components under an administrative and legal function, i.e. S.8 of the Act or the parameters of the moratorium . On May 9, 2016, the Labour Court concluded that a claim under the fixed term legislation succeeded where a dismissal in penalisation circumstances was proved .DIT v. Wogan FTD 164
I was struck by the complainants evidence ,where she remarked that her time spent as a Job Bridge Solicitor, Volunteer Solicitor and Contract Solicitor for the respondent was indistinguishable and that this gave her an understanding that the cumulative service from 2011 would go someway towards the 4 year continuous service required to secure a contract of indefinite duration . This was a personally held view and one she did not canvas the respondent with. Therefore, I accept the respondent contention that both contracts were accepted without a recorded objection by the complainant as stated by the EAT . I also accept that both contracts were fixed term contract .My reservation on the omission to comply with S8(2) remains .
In O Mahony V the Provost V Fellows v Scholars v Undivided Trinity, UD 613/95, The EAT synopsised the position of the claimant vis a vis his plan to become a permanent employee :
“While he may have had hope, or even expectation, that, at the end of the three year period, the contract would be renewed or he would be made permanent, it was also made quite clear to him, and he should have understood, that the college had made no such commitment”
There are some parallels in the instant case; the complainant clearly had a hope of continuance based on her enjoyment of the job. The hope crystallised into a contract renewal in 2014 and overcome the written limitations contained in the forms of acceptance , However, by July 2015, the hope was disturbed by notification of termination.
Application of section 2(2) (b) of the Unfair Dismissals Act, 1977
I have arrived at what is the kernel of the case for both parties. The respondent has rested its case on the contention that the Adjudicator does not have jurisdiction to hear the case as the application of Section 2(2) (b) has constituted an exclusion clause by means of both contracts. The complainant has argued in the alternative and has rested the preliminary argument on an incomplete inclusion of all the pre requisite elements of the exclusion clause.
. Section 2 of the Unfair Dismissals Act 1977, provides a number of exclusions to the operation of the Act:
Subject to subsection (2A), this Actshall not apply in relation to—
2(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 censer 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.
The EAT has developed considerable jurisprudence in this area. Fitzgerald V St Patricks College Maynooth , UD/244/1978, Sheehan V Dublin Tribune Ltd ,[1992]ELR 239, Cahill v Teagasc UD 205/95,Allman V Galway and City Enterprise Board ltd UD 1363/2004, Cuinneagain , UD 1008/2006 and Kemmy, UD 1079/2013 as submitted by the respondent .
In all these cases, the Tribunal has scrutinised the composition of the manner in which section 2(2) (b) was superimposed or inserted on the contract of employment and in my opinion applied a consistently high probative approach throughout the 35 year reference period and beyond.
In Fitzgerald , in a case decided long before the 1993 Unfair Dismissals(amendment) Act or the introduction of the Fixed Term Act ,2003, the EAT recorded an illuminating view on the circumstances of an expiration of a fixed term contract not meeting the” substantial ground” test for a dismissal under the Act
“If the mere expiry of a fixed. Term contract of employment were to be regarded as a substantial ground for the non renewal of the employment, the Unfair Dismissals Act could be rendered abortive in May cases. An employer could side step its provisions by employing his employees on fixed term contracts only …….”
In the instant case, dismissal is disputed by the respondent. I have found that a dismissal occurred when her fixed term contract of employment was not renewed under the same contract .Section 1(c) (c) of the Act applies .The expiry was followed by a non renewal .
In Sheahan, The EAT determined that the following clause in a fixed term contract did not satisfy the waiver and awarded compensation as redress for the breach of the Unfair Dismissals Act.
“The arrangement is for a two year period and is again, on a contract basis. It is fully understood again that on the termination of this contractual arrangement no residual obligation will exist towards you nor shall you have any claim on the company arising from the termination of such contract, including any claim for compensation for loss of office “
This approach was followed in Allman
The respondent submitted O Cuinneagain and Kemmy as authority for the application of the waiver pertaining to S.2 (2) (b).
In O Cuinnegain , the EAT determined:
“The three conditions, that the contract be in writing, that both parties have signed it and that the agreement expressly excludes the benefit of the Unfair Dismissals Act as set out in section 2(2) (b) have been complied with by the parties in this matter and therefore binds them……….Statute replaces common law and the Tribunal is bound by Section 2(2) (b).”
The central clause was extracted from the contract and satisfied all the provisions of the waiver. This was followed in Kemmy, where this time the central clause accepted as waiver by the Tribunal was comprised of:
“ You should note that the Unfair Dismissals Acts 1977 to 2007 shall not apply to a dismissal consisting only of the expiry of this fixed term contract without it being renewed “
It is clear that the high probative approach was followed in all of the above cases.
In the instant case , I wish to set out the outcome of my own probative approach on the contracts of the complainants employment with regard to the mandatory requirements necessary for the attainment of the waiver contained in section 2(2)(b)
1 I am satisfied that both contracts were fixed term contracts.
2 I am not satisfied that dismissal consisted only of the expiry of the term without it being renewed under the said contract .I am persuaded that there was a sub plot of performance issues which disturbed and diverted the actions of the respondent in respect of renewal of the contract . I will return to this.
3 I am satisfied that the contract at the time of termination was in writing and was signed by both parties. There were some shortcomings in relation to obligations under S.8)2) of the Fixed Term Act.
4 I am not satisfied that the contract contains a specific clause on “This Act shall not apply to a dismissal consisting only of the expiry or cessor aforesaid.”
I appreciate that the respondent made extremely precise arguments on the terms of the contract being sufficient to engage s2(2)(b) , however, I find that this case is distinguished from Cuinneagain and Kemmy in that regard, as the waiver clause had in essence been distilled down in the actual specific wording of the contracts so as to be considered by me to be inoperative. I find that the respondent cannot, therefore avail of the waiver clause on this occasion.
In Dawson v Telefonica O2 UD 672/2012, in a case concerning a pursuance of the exclusion clause in circumstances of a dismissal following a return to work post maternity leave , the EAT determined that the contracts “ satisfied all the conditions” set out in S2(2)(b) . This is also clear authority for the high probative approach which insists on a verbatim application of the waiver clause in the corresponding contract in case law so as to safeguard the spirit and intention of the application of the Unfair Dismissals legislation.
Having decided that the waiver clause does not have application in the instant case. I must now address the claim for Unfair Dismissal lodged by the complainant in December 2015.
Section 6(1) of the Unfair Dismissal Act 1977,” provides that a dismissal of an employee shall be deemed, for the purposes of this Act to be an unfair dismissal having regard to all the circumstances, there were substantial grounds justifying the dismissal “
The respondent in this case rebutted the dismissal and submitted that the employer was prevented by the absence of confirmed approval from DPER from offering further employment. I wish to summarise my findings in this regard.
1 There was a defined lack of transparency surrounding the renewal process during 2014 and 2015.I appreciate that the moratorium may well have stymied innovation and creative thinking in terms of recruitment but the clear inconsistency of approach by the respondent is worrying. I was struck by the “cloak of the board “being referred to as the collective decision maker on termination when in reality it was an acknowledged binary approach. I find that the respondent took a “ short cut “in this regard .
2 There were three parallel processes of communication in existence from May 2015 up until July 31, 2015
On one level, Mr HR and Director of services were in ongoing daily communications as submitted by Mr H in direct evidence. On another level, the complainant made a compelling presentation to the hearing that she had not been appraised that anything other than the “cardinal error “had troubled the respondent. Finally, it seemed to me from the complainant’s evidence and the “email pathway” that the complainants line manager and regional manager were prepared to assist the complainant in her corrective action plan if necessary. This good will was not called upon by the respondent.
3 There was no opportunity for the complainant to have an adequate opportunity to submit a defence. There was no reliance on S.I 146/2000 on the code of practice on Disciplinary Procedures or even recourse to the extensive disciplinary process available to the respondent
4 There was an ongoing requirement for the work performed by the complainant, as evidenced by the return of the retired solicitor to fill the “gap”.
In short, there were no substantial grounds governing dismissal and I must therefore find in favour of the complainant in that regard.
Redress:
Section 7 of the Act governs redress options to me. I am mindful of the complainants expressed desire, if successful, for the option of re-instatement under S.7 (a). I have considered the obstacles to this as cited in Fitzgerald and I have considered the submissions of the respondent that there are no vacancies available. I have also considered the other two options of re-engagement and compensation.
The complainant has had an extraordinary journey since 2011 at the respondent centre. She passed her probation and secured successively high scoring in her performance reviews. I appreciate that a cardinal error occurred in the spring of 2015, which caused a chasm in otherwise mutually respectful working relationship. This chasm was not advanced under any identified procedure by the respondent; this left the complainant in the dark about the enormity of the impact of her error. She assumed that she had addressed her shortcomings and was moving forward. The respondent had every right to protect its interests and client base, however, there was an onus on the respondent to adopt fair procedures in this regard . I believe that they fell far short of this test .
I am particularly unsettled at the close proximity of the notification of the relaxation of the moratorium and the complainant’s departure on August 29, 2015. The email was sent from the Departments Personnel Office on 27 August, 2015, two days before the complainant left .The sanction covered a three year time span from 1 January, 2015. It is beyond belief that no one in the respondent service reached out to the complainant with what in essence equated with “an armistice day “in employment terms. I find that the complainant deserved a more considered approach.
I am particularly mindful of the complainants undisputed evidence whereby she received a phone call from her erst while manager on September 4th , indicating no more could be done by the respondent to assist her .I note that this is the recorded date when the respondent sought a replacement from DPER to fill the vacancy created by the complainants departure .
In accordance with S (7) (1) (a) of the Act, I find that the most appropriate redress that I can award is to place the complainant back to where she was immediately before her dismissal on August 29, 2015. I find that it would be just and equitable for the respondent to issue the complainant a renewed fixed term contract of one year duration, on the terms and conditions on which she was employed before her dismissal. This is to include pension entitlements and incremental credit.
I do not consider the options of re-engagement or compensation to be appropriate or sufficient redress in the circumstances.
Patsy Doyle, Adjudicator.
Dated: 29th September 2016