ADJ-00002598

Complainant

Respondent

Anonymised Parties

A Marketing and Software Developer

A Commercial & IT Solutions Company

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-00003624-001

01/04/2016

The Complainant was first introduced to the Respondent Company via a Consultancy Company that, he, the Complainant worked for. This would have been on or about the 4^th of January 2014. In this phase he was technically an employee of the Consultancy Company but was effectively deployed almost full time to the Respondent.   On the 1^st August 2014 the Complainant commenced a six month fixed term employee contract for the Respondent – this was extended informally until the 31^st July 2015. At this date the Complainant’s contract was not renewed. A further informal arrangement was put in place for the months of August /September whereby he Complainant worked outside the PAYE system, one day per week for the Complainant. A new Sales Manager was employed and following discussions a part time regular employment contract was entered into with the Complainant. This 3 day per week contract commenced on the 5^th October 2015 for a period of three months with the option to review after that time.

On the 1st December 2015 the Respondent sent an e mail to the Complainant informing him that his contract was not going to be renewed at the end of December 2015. The Respondent had hired a new Marketing executive and there was no longer a role for the Complainant.

In his oral evidence the Complainant strongly contended that this was unfair and that he had been effectively discriminated against on age grounds. There was no rational explanation for not continuing his role, he was not afforded the opportunity to discuss the situation and his ending of employment was effectively a fait accompli by the Respondent. He was denied Natural Justice and discarded as simply too old to continue with the Company.

The Complainant was first introduced to the Respondent by the Consultancy Company X in early 2014. The relationship was good and on learning that the Consultancy Company X would no longer be employing the Complainant the Respondent offered the Complainant a Six Moth Fixed Term Contract on the 1^st August 2014. This was at the instigation of the then Sales Manager of the Respondent - Mr A.   At the end of this six month period the MD of the Respondent Mr B was unable to formulate a clear business strategy to offer a fulltime position to the Complainant. However it was appreciated that the Complainant was doing good work, the market was in a state of considerable flux coming out of the economic recession and accordingly the employment of the Complaint was let effectively drift until the end of July 2015.

It was then discontinued as a full time PAYE role. However an informal arrangement existed in August, outside of PAYE but was regularised again in October when a fixed term three month (39 days) part time contract was put in place. At all times it was made clear to the Complainant that his employment relationship was always subject to the changing business needs of the Respondent – in particular the Marketing function. A New Sales Manager had been appointed in September 2015 and he had carried out an extensive review of the Sales/Marketing strategy. To assist in this the input of the Complainant was most useful on a part time almost consultancy basis. It was never envisaged that it would become a full time role. The Complainant was also experiencing considerable health challenges at this time.

One of the decisions arising from the Sales & Marketing review was that it was now necessary to engage a new full time Marketing Executive.

Accordingly, having reviewed all the factors it was clear to the Respondent that the part time assistance of the Complainant had run its course and the Contract was not renewed.   There was nothing Unfair in this decision and any suggestions of Age having a bearing on the non renewal of the Contact were resolutely denied.

3:1     The Legal position ;

Section 6 of the UD Act 1977 and in particular Section 6 (2) ee –the age ground could be pleaded by the Complainant although it must be noted his Representative did not refer to this section but made general allegations regarding Age.

In keeping with all UD Act, 1977 claims S.I. 146 0f 2000 Code of Practice on Grievance and Disciplinary Procedures is relevant as are the dictates of Natural Justice. These are clearly identified by Mr. Justice Flood in Frizell v New Ross Credit Union [1977] IEHC 137 claim where he stated in regard to UF Dismissal claims generally.

“Put very simply, principles of natural justice must be unequivocally applied.”

In plain English this means that an employee is entitled to be fully informed of all issues of complaint the employer has with him, in given a full opportunity in good time to explain and rebut the issues and is given a right to appeal any decisions made against him. The first decision maker and latterly the Appeal Hearer have to be sufficiently detached from the day to day business and able to make a fair and independent decision.

3:2     The Evidence

This was a case that relied heavily for explanations on oral evidence from the parties. The basic employment facts were not contested save for some differences of opinion regarding the starting date of the Complainant.

Oral Evidence

The main witness for the Respondent was the Managing Director Mr. B.

In his evidence he detailed that the Respondent Company was a specialised IT/Marketing Systems service provider to large Retail Chains in Ireland and latterly the UK. They had survived the economic downturn relatively unscathed and in late 2014 and early 2015 were beginning to experience what he referred to as the “release of pent up expenditure/demand” among the major Retail chains. The Company was well placed to meet these demands and had ambitious growth plans.

In the downturn they had probably let the Marketing function have a lesser role but by late 2014 were anxious to reenergise that aspect of their business. However they were as a management wary and somewhat uncertain as to the best approach. The long standing Sales Manager had been the initial promoter of the Complainant as an asset to the Company. When he became aware that the Consultancy Company ,he, the Complainant was working for could no longer keep him as an employee it had been agreed to offer the Complainant a fixed term contract for six months with the Respondent.

The MD was adamant that the former Sales Manager may have oversold the role ,in terms of an opportunity of an eventual permanent position to the Complaint as it was the MD and the MD alone who could offer permanent positions.   The MD made it clear that while he appreciated the good work done by the Complainant in late 2014 and up to July 2015 he had never envisaged it becoming a permanent role. He felt that this had been well understood by the Complainant in the Spring months leading up to July of 2015 by the Complainant.

There appeared to be no issues in July 2015 and the Complainant had parted from the full time albeit fixed term contract on amicable grounds. The Company was by then in a growth phase and a new Sales Manager had been appointed following the retirement on age grounds of the incumbent.

It was recognised that until the new Sales Manager was fully up to speed some almost Consultancy assistance would be useful from the Complaint – hence the Part Time Contract, for three months or 39 days in October 2015. There could never have been any suggestion that it was anything more than a Part Time arrangement with a short duration.

By December 2015 the new Sales Manager was well established and it had been decided to appoint a Marketing Executive. The need for the support from the Complainant was now exhausted.

As an aside the Complainant was suffering serious Health challenges and his availability for anything other than limited part time work was very questionable even if he had volunteered for same which he clearly did not. His age was irrelevant.

In summary the Complainant’s full time role had finished in July 2015 and his temporary part time role had run its course by December 2015. The ending of the Part time Contract was perfectly legal business step and nothing of an Unfair nature could be attributed to it.

All his evidence was subject to cross examination by the Representative for the Complainant.

It was pointed out that the sending of the e mail – non renewal of the Contract dated the 1^st December 2015 could have been handled a bit more sensitively but was not in itself an Unfair act. Difficulties in meeting the complainant face to face because of availability and medical issues had been experienced.

The key issue then becomes the Part Time Employment Contract of October 2015.

3:3     Part Time Employment Contract of October 2015.

While the Contract has no termination date mentioned the attached e mail correspondence between the Parties clearly mentions the “Casual Nature” of the employment and the requirement being for 39 days.

Even allowing for the Health challenges the Complainant was facing during this period I could not get any understanding from the Complainant during his oral evidence that he felt it was a permanent long term contract. A commitment to 39 days is not a long term employment relationship.

3:4     Conclusions

From the evidence I came to the conclusion that the Employment Relationship between the parties was more of a Consultancy type role than that of a regular employee – this is not withstanding the lengthy period that the Complainant was a regular PAYE employee – the first six months temporary contract and its drift to the end of July 2015. It was clear that the relationship had been established on these lines while the Complainant was initially employed by the Consultancy company prior to coming on to the books of the Respondent.

In the oral evidence it was maintained that the relationship had been primarily with the Sales Manager A -now retired). The MD, who gave extensive evidence, allowed the first six moth contract to effectively drift as he was unsure of the direction of the business in terms of Sales & Marketing. The Complainant by the very nature of his role would have been close to all business policy issues and the ending of the short term contract in July did not appear to come as a shock.

The new Part time Arrangement, was initially to have been a Pure Consultancy a “For Service” type arrangement was amended to allow for Social Welfare considerations and became a Contract “of Service”. I could see no feeling or impression that it was anything other than a temporary arrangement to help during the initial phase of the new Sales Manager B. The tone of the e mails from both parties, exhibited in evidence, gave no impression that a long term relationship was being contemplated.

During late 2015 the Complainant suffered severe health challenges and his availability to travel to Dublin to attend meetings was curtailed. The E mail of the 1^st December 2015 (not renewing the Part Time Contract) was, in view of all the circumstances, probably a bit abrupt. The need for the Complainant’s assistance had passed – new staff had been appointed and the part time Assistance Contract was not being renewed.

Having reflected on all the evidence ,both oral and written, I did not feel that the non renewal of the Part Time Contract in December 2015 qualified as an Unfair Dismissal

On the grounds of Age Discrimination I found no prima facie evidence to justify this contention by the Complainant’s Representative.