ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00004537
| Complainant | Respondent |
Anonymised Parties | Secretarial Assistant | Public Representative |
Complaints:
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-00006277-001 | 04/08/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00006277-002 | 04/08/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00006277-003 | 04/08/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00006277-004 | 04/08/2016 |
Date of Adjudication Hearing: 16/03/2017
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 13 of the Industrial Relations Act 1969, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
Complaint reference CA-00006277-002 under the Minimum Notice and Terms of Employment Act 1973 was withdrawn by the complainant at the hearing. The complainant contends she was unfairly dismissed by the respondent at a meeting on 3rd May 2016 when she expected to be offered a renewal of her contract. She further contends that as her contract was not renewed and her position apparently no longer exists, the she is entitled to statutory redundancy payment. Under the Industrial Relations Act 1969, she submitted a dispute that she is “in dispute with (her) Employer regarding the terms of S.I. establishing the scheme for secretarial assistants “The Scheme” and Oireachtas members HR “Staffing Arrangements for the end of the 31st Dail/24th Seanad” |
Summary of Complainant’s Case:
The complainant stated that she commenced working with the respondent as his secretarial assistant on an 80% basis on 19th September 2011. The contract was for the remainder of the government’s term. Some time later, she was given a 100% contract. She stated that from the time she started until 3rd May 2016, she had no reason to believe that the respondent would not re-employ her. Following the 2016 General Election, the respondent asked her would she be interested in another contract. He said there would be changes in the new contract. During the same conversation, overtime was discussed and she told him she was owed for 4 hours overtime, and he said he would follow this up. The complainant was thinking about the new contract and what it would entail and was shocked to learn from the respondent on 3rd May 2016 that there was no job. He stated to her that he was not taking on anyone. He assured her that she would get the VER (Voluntary Early Retirement and Redundancy package) payment and redundancy. Soon after the 31st Dail was dissolved, the complainant received information regarding future employment / redundancy. Information provided said that if your TD / Senator was not re-elected you would receive a Voluntary Retirement Package (VER) and redundancy. It is argued that this implies that should your TD / Senator be re-elected you would retain your job. It is further argued that the respondent indicated to the complainant that the job no longer exists and therefore she is entitled to statutory redundancy. |
Summary of Respondent’s Case:
The respondent was elected as a member of the 24th Senate on 24th April 2011. As a member of the Seanad, he was entitled to employ staff to assist him in the performance of his duties, whose salaries were discharged by the Houses of the Oireachtas Service. On 19th September 2011 the complainant entered employment with the respondent as a secretarial assistant. The complainant’s contract which was in the nature of a fixed term contract, specifically provided that the contract would terminate on the dissolution of the 24th term of Seanad Eireann. On 3rd February 2016, the Dail was dissolved which also had the effect that the 24th term of Seanad Eireann ended. All staff employed under the Scheme for Secretarial Assistance, including the complainant, were notified of this by way of Circular on 3rd February 2016. In accordance with the complainant’s contract, this Circular sets out that she was to remain on payroll for a period of six weeks after polling day. Where no new contract was entered into staff were automatically removed from payroll with effect from 7th April 2016. Having considered the matter carefully, the respondent informed the complainant that he would not be offering her a new contract. The fixed term contract under which she had been employed terminated on 7th April 2016. A Circular setting out financial entitlements for persons in the complainant’s position had issued and the complainant accepted payment of her entitlements without objection. A submission which was enclosed in the respondent’s booklet of submissions was subsequently withdrawn post hearing. Unfair Dismissal claim Section 2 (2) (b) of the Act of 1977 provides in material part as follows: “This Act shall not apply to…dismissal where the employment was under a contract of employment for a fixed term..and the dismissal consisted only of the expiry of the term without its being renewed under the said contract…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…aforesaid”. |
It is submitted that Clause 3 of the complainant’s contract of employment provides that “The Unfair Dismissals Act 1977 (as amended) shall not apply to a dismissal consisting only of the expiry of the term specified in clause 1”. Clause 1 of the complainant’s contract provides that the complainant’s terms of employment expired on the dissolution of the 24th term of Seanad Eireann. The Act of 1977 accordingly has no application to this claim.
Minimum Notice claim
The complainant received 9 weeks notice of termination of her employment, by virtue of notification on 3rd February 2016 that she would be removed from the payroll on 7th April 2016.
Redundancy Payments Act 1967 claim
The Circular sent to the complainant on 3rd February 2016 sets out the entitlements. The complainant can only claim VER and Statutory redundancy in circumstances where the employer does not retain a seat. Further, it is submitted that if the complainant wished to claim a statutory redundancy payment, she has cited the wrong employer in her complaint form. To that end, attention is drawn to a communication from the Houses of the Oireachtas Human Resources Department to the complainant’s representative on 30th September 2016 in which it is stated that whereas the complainant’s employment relationship was with the respondent cited, however, the payment of redundancy is made by the Houses of the Oireachtas Service and if the complainant believes that she has a claim for a statutory redundancy payment, such claim may be submitted in writing for consideration to the Service.
Industrial Relations Act 1969 claim
It is submitted that the essential elements of the other claims/complaints are repeated in this claim.
Findings and Conclusions:
CA-00006277-001 – Unfair Dismissals Acts 1977-2015 A submission which was enclosed in the respondent’s booklet of submissions was not referred to in the hearing and was subsequently withdrawn post hearing, and I have not taken that document into account nor the response of the complainant. |
The applicable law
Section 2 (2) (b) of the Act of 1977 provides:
“This Act shall not apply to
(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 cesser aforesaid”.
The complainant was employed on a Fixed Term Contract which stated specifically that the contract “will expire (if not earlier) on the date of the general election for the 32nd Dail (being the polling date thereof)”. The contract further states: “As this is a Fixed Term/Specified Purpose contract, termination is in accordance with the duration of the contract. The Unfair Dismissals Act 1977 to 2001 shall not apply to a dismissal consisting only of the expiry of the term of the contract, which term is specified in paragraph 1”.
This contract was signed by the employer and employee on 16th September 2011.
As the contract was (a) in writing setting out the duration and object, (b) was signed by both employer and employee and (c) contained a specific clause stating that the Acts shall not apply to a dismissal consisting of the expiry of the contract, the Act does not apply and I decline jurisdiction in the matter.
CA-00006277-003 – Redundancy Payments Act 1967
I note the correspondence dated 30th September 2016 from Human Resources in the Houses of the Oireachtas which states inter alia:
“the payment of redundancy is made by the Houses of the Oireachtas Service who facilitate payroll for the employees of members of the Houses. If (the complainant) believes that she has a claim for a statutory redundancy payment, such claim may be submitted in writing for consideration to the Service”.
The complainant may not have pursued this avenue. However, she has submitted her redundancy claim under the Redundancy Payments Act 1967 and it is under that Act that this instant claim is considered.
The Applicable law
Redundancy is defined in Section 7 (2) of the 1967 Act as being a dismissal, attributable “wholly or mainly to
(a) the fact that his employer has ceased or intends to cease, to carry on the business for the purposes of which the employee was employed by him, has ceased or intends to cease to carry on that business in the place where the employee was so employed, or
(b) the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the case where he was so employed have ceased or diminished or are expected to cease or diminish”.
From the evidence it could be deduced that the work the complainant carried out had ceased or diminished. However, given the information communicated to her in that letter of 30th September 2016 regarding who facilitates the payroll (i.e. who is liable to pay the wages), the complainant has submitted her complaint against the wrong respondent. I do not uphold her claim.
CA-00006277-004 – Industrial Relations Act 1969
The complainant’s claim of unfair dismissal is dealt with in CA-00006277-001 above and I do not intend to re-visit the arguments in respect of that claim under the Industrial Relations Act. However, there are elements of the end of the employment relationship which must be examined in the context of the dispute the complainant had with the respondent. Specifically, the respondent did not offer her another contract as he had to re-organise his activities and the roles supporting him in the new situation. He believed the complainant did not possess the required skillset for the new situation. However, the process of the recruitment of the complainant’s replacement was not clear, and it was not clear if the respondent advertised the position or not. In any event he came to the conclusion that the complainant would not be suitable without offering her an interview or any opportunity to put herself forward in any competition. For this reason only and in order to draw a line under this dispute, I recommend that the respondent offer the complainant the sum of €3,000 in compensation and that the complainant agrees that this is in full and final settlement of the dispute specifically with the respondent.
Decision:
I do not uphold the complainant’s claims under CA-00006277-001 and CA-00006277-003.
Recommendation::
Under reference CA-00006277-004 I recommend that the respondent offer the complainant the sum of €3,000 in full and final settlement of her dispute with the respondent.
Dated:06 June 2017
Workplace Relations Commission Adjudication Officer: Gaye Cunningham