LCR21432

• The Claimant said he was employed by H.M.S. Host Ireland at Shannon Airport as a Food and Beverage Associate and then by E.F.G. Zest upon transfer. He was told that his personal files and documents were handed over to the new employer and his job was safe.

• The Employer said H.M.S Host Ireland was transferred to it on the 25 August 2016 and the Claimant did not have a permanent contract of employment.

The Complainant was employed by the Respondent from November 2015 until the termination of his employment with effect from 4^thNovember 2016. The Claimant had been recruited by a company entitled HMSH IRL. That Company transferred to the Respondent on 25^thAugust 2016 and the employment of the Claimant transferred to the Respondent at that time.

The Respondent asserts that the Claimant was employed on a fixed term contract with an expiry date of 31^stOctober 2016 and that a downturn in business caused the termination of the employment upon the expiry of the employment contract. The Respondent asserts that the termination was not the fault of the Claimant.

The Claimant maintained before the Court that he was employed on a permanent contract of employment dated 18^thNovember 2015 and that he was not a fixed term worker.

The Court was provided with (a) a permanent contract of employment signed by the Claimant and the Respondent (by way of the then employer whose business transferred to the Respondent in August 2016)on 18^thNovember 2015 albeit that the Respondent stated that the then employer did not make the Respondent aware of the existence of the contract on transfer, (b) a fixed term contract of employment with an expiry date of 7^thJune 2016 signed by a manager of the Respondent as an employee on 14^thDecember 2015 and signed by an unknown representative of the Respondent on 7^thDecember 2016, and (c) a fixed term contract with an expiry date of 31^stOctober 2016 signed by the Respondent on 1^stSeptember 2016 and purporting to have effect from 12^thDecember 2015.

The Respondent asserted that contract (b) above, signed as it was by persons other than the Claimant, was the contract in effect until 7^thJune 2016. The Respondent also asserted that contract (c) above signed by the Respondent on 1^stSeptember 2016 and not signed by the Claimant was in effect at the date of termination. This latter contract in some unexplained manner purports to have had effect for many months prior to its date of signing by the Respondent on 1^stSeptember 2016 including throughout the period of contract (b) above. Finally the Claimant asserts that the contract in effect at the date of termination of his employment was contract (a) above.

The Court notes that the Respondent contends that the termination of this employment arose for business reasons and through no fault of the Claimant. Nevertheless the Court has been presented with a series of contracts of employment which, at a minimum, when taken together succeed in creating a high degree of confusion as regards the employment status of the Claimant and his relationship with the Respondent as his employer.

The contract of employment is a serious document which is recognised in law as carrying significance and weight. The Claimant in this case cannot be fixed with the responsibility of articulating the terms of his employment in the contract of employment. That responsibility rests entirely upon the Respondent who must ensure that the contractual position of employees is clear and unambiguous. The Respondent in this case has failed in that duty.

The importance of clear contractual terms came sharply into focus upon the termination of the Claimant’s employment and indeed the confused nature of the contractual position inhibited the conduct and execution of clear and transparent procedures throughout the process of termination.

In all the circumstances of this case the Court notes that the termination of the employment took place at a time when the Claimant’s contractual relationship with the employer was less than unambiguously set out in a contract. The Claimant, in the Court’s view, is entitled to have the detrimental effect of that lack of clarity upon the procedures employed at the termination of his employment recognised by the Respondent. The Court therefore recommends that the Respondent should pay the sum of €5,000 to the Claimant in full and final settlement of the matter in dispute.

The Court so recommends.

Signed on behalf of the Labour Court



Kevin Foley
CR______________________
10 April, 2017Chairman



NOTE

Enquiries concerning this Recommendation should be addressed to Ciaran Roche, Court Secretary.