ADJ-00006250

ADJUDICATION OFFICER DECISION 

Adjudication Decision Reference: ADJ-00006250

Complaint(s)/Dispute(s) for Resolution:  

Date of Adjudication Hearing: 07/02/2017

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 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.

Attendance at Hearing: 

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

The complainant was initially employed under a Job Bridge scheme and then was employed by the respondent from 1 July 2013 as a Graphic Designer.

The complainant was at all times employed on a fixed term contract.

In January 2016 the respondent sought to extend the fixed term contract and issued a draft contract to the respondent in this regard. Following representations from the complainant the respondent agreed to a finish date of 31 July 2016 and the document was then accepted and signed by the complainant.

The complainant, for personal reasons again requested an extension and the respondent agreed to this on the basis of a one month extension and part time working.

The complainant’s employment ceased on 31 August 2016 as it was time expired.

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:

Whether the termination of the complainant’s employment by the respondent was in breach of the provisions of the Unfair Dismissal Acts, 1977.

Legislation involved and requirements of legislation:

Section 2(2) of the Unfair Dismissal Act 1977 states:

Subject to subsection (2A), this Act shall not apply in relation to –

1. Not relevant

2. 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. 

Section 6(1) of the Act states:

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all of the circumstances, there were substantial grounds justifying the dismissal. 

Section 6(7) of the Act states;

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, consider it appropriate to do so –

1. the reasonableness or otherwise of the conduct (whether by act or omission) of the employer to the dismissal, and

2. to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in Section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of Section 7(2) of this Act. 

Decision:

This complaint was heard in conjunction with the complaint under the Safety, Health and Welfare at Work Act, 2005, contained in Case Ref No. ADJ – 00003857.

Further written submissions were received from both parties after the hearing.

The complainant was employed as a Graphic Designer commencing employment on 1 July 2013. His salary was €2,686.67 per month gross and he was employed on a full time basis apart from the final month of employment which was part time. The employment terminated on 31 August 2016.

The complainant had been employed on a Job Bridge scheme with the respondent and became an employee of the respondent on 1 July 2013. No contract of employment was issued to the complainant at that time. The respondent is a small employer with 3 employees.

In 2014 the respondent consulted with a HR Advisor who was requested to draw up contracts and staff handbooks. The advisor’s evidence was that she was given to understand that the complainant was employed on a fixed term contract and accordingly drew up such a contract for him. The owner stated that pressure of business intervened and as a result she forgot to issue the contracts. Nothing further occurred in the way of contracts until January 2016.

Around the 20 January 2016 there was a meeting and the complainant was given a copy of a contract. This contract was a fixed term contract and had a date of commencement of 1 July 2013. It went on to state that “This contract is due to expire on 30^th March 2016: however I would like to offer an extension of the contract to Thursday 30^th June 2016.”

There are differing versions from the parties in relation to the conversations in regard to this contract. The complainant’s evidence was that he was informed that the contract was being issued in order to formalise matters and that it would be extended if he behaved himself. The respondent denies that that was said and stated that the only matter discussed was the date of termination. The complainant was given time to consider the matter. The complainant (whose first language is not English) wrote to the respondent’s HR Advisor on 15 February 2016 and started the letter as follows: “I do not agree for being employed on a fixed term contract as this does substantially changed the terms and conditions I currently work under.” The complainant then goes on to complain about a number of work related issues including the fact that he had never been issued with a written statement of his terms and conditions of employment despite asking for same many times. He mentioned starting in the company on the Job Bridge scheme and then writes: “After this period I was employed permanent on full time basis from 1^st July 2013, as date is shown in your contract proposal.” The complainant also mentioned that he had applied for Irish citizenship which required that he be in permanent full time employment and that the respondent was aware of this application. A number of health and safety concerns were also contained in the letter.

On 17 February 2016 the complainant signed the contract after the date of termination had been changed to 31 July 2016. The complainant’s evidence again was that he believed that this termination date would be extended. The respondent denied any suggestion that this was mentioned.

On 27 July 2016 the complainant wrote again to the owner and the HR Advisor. The letter commences: “I did not agree for being employed on a fixed term contract, but signed it after extension until 31^st July 2016, assurance about health and safety statement in next 2 – 3 weeks and declaration from (owner) that she doesn’t want to finish my employment that date.” The complainant then went over the history of his involvement with the respondent and complained about his treatment. He also referred to his citizenship application taking another 10 – 15 days and finished by requesting that his contract be extended by a further 2 – 3 months. The outcome of this letter was a suggestion by the owner that the contract be extended by one month on a 3-day week basis. The respondent forwarded a new contract to the complainant on 28 July 2016. This gave the date of commencement as 2^nd August 2016 and went on to state: “You will be employed for a fixed term of one month on a part-time basis, expiring on 31 August 2016.” This contract was signed by the complainant on 3 August 2016. In mid-August the complainant delivered a hand-written note to the respondent in relation to his breaks and this was responded to by referencing his contractual entitlement to breaks. The complainant’s employment terminated on 31 August 2017.

The respondent contends that the claimant was at all times employed on a fixed term contract. Section 8 of the Protection of Employees (Fixed-Term Work) Act 2003 states:

1. Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is –

1. arriving at a specific date,

2. completing a specific task, or

3. the occurrence of a specific event.

1. Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of renewal.

2. A written statement under subsection (1) or (2)is admissibleas evidence in any proceedings under this Act.

3. If it appears to a rights commissioner or the Labour Court in any proceedings under this Act –

1. that an employer omitted to provide a written statement, or

2. that a written statement is evasive or equivocal,

the rights commissioner or the Labour Court may draw any inference he or she consider just and equitable in the circumstances.

On 20 January 2016 the respondent gave a contract to the complainant with a commencement date of 1 July 2013 and a completion date of 30 March 2016. This termination date changed twice before the complainant signed the document. It appears to me that a delay of two and a half years cannot in any way meet the requirement in Section 8(1) of the above Act that the contract be issued “as soon as practicable” while a date that changed twice can hardly be called specific. This is reinforced by the evidence that a contract was prepared in 2014 but not issued. The assertion that he was on a fixed-term contract was also continuously refuted during this period by the complainant. I therefore find that the complainant was employed on a contract of indefinite duration which is subject to the legal constraints applicable to such contracts including the provisions of the Unfair Dismissal Acts.  The final purported contract issued on 28 July 2016 and signed on 3 August 2016 is therefore also flawed as it states that the complainant’s employment commenced on 2 August 2016.

The other factors that I have regard for is the fact that of the three employees the complainant was the only one who was given this type of contract. In addition the owner stated that the complainant was not flexible in comparison to the other employees and was always complaining. She also mentioned that there was not now the requirement for a full-time Graphic Designer. These statements give credence to the view that there were other motives at work in deciding to terminate the complainant’s employment. In coming to my decision therefore I am having regard to the provisions of Section 6(7) of the Act in relation to the conduct of the employer.

It is my decision that the complainant was unfairly dismissed under the Unfair Dismissals Act 1977. The complainant provided evidence of attempting to gain employment, so far unsuccessfully. I consider compensation to best form of redress in the circumstances. I therefore require the respondent to pay to the complainant the sum of €30,000.00 as compensation in this regard.

Dated:   03 May 2017