Complainant

Respondent

Anonymised Parties

A General Operative

A Civil Engineering Company

Representatives

Poe Kiely Hogan    Lanigan Solicitors

Penninsula Business Services (Ireland)   Limited

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-00007780-001

24/10/2016

The Complainant was employed as a General Operative by the   Respondent on 19^th January, 2015 and his employment terminated at   the end June, 2016. The Complainant referred a complaint to the Workplace   Relations Commission on 24^th October, 2016 alleging that he had   been unfairly dismissed by the Respondent on 13^th June, 2016. The fact   of dismissal was in dispute between the parties.

The Complainant commenced employment   with the Respondent in January, 2015 and was initially working as a concrete   finisher on a job in the Waterford region.   The Complainant was assigned by the Respondent to work on jobs at a   number of different locations throughout the country during his period of   employment.

The Complainant was assigned to work on a job in Cavan   prior to the termination of his employment after the Respondent had requested   him to take up this assignment as the job in that location was in   “trouble”. The Complainant travelled   to and from his home to the job in Cavan every day. When the job in Cavan finished on 13^th   June, 2016 the Complainant was instructed to take some time off as there was   no further work at that juncture. The   Complainant was informed by the Respondent that he would be assigned to a job   in Newbridge which was due to commence shortly thereafter. The Complainant attempted to contact the   Respondent’s Director, Mr. A, on numerous occasions over the following three   week period to establish the position in relation to a return to work. However, he was unable to contact Mr. A   during this period and instead communicated with Ms. B, Payroll Manager, on a   number of occasions (by telephone and e-mail) in relation to the matter.

The Complainant, through his contact with Ms. B, attempted   to arrange a meeting with Mr. A to discuss and clarify the situation but he   felt that Ms. B was trying to “fob him off” and it was not subsequently   possible to arrange this meeting. The   Complainant was not afforded any further work and his employment with the   Respondent terminated despite his numerous attempts to contact Mr. A to try   and clarify the situation. The company vehicle and mobile phone which the   Complainant had used during his employment were taken back by the Respondent   on 18^th July, 2017.

The Complainant disputes the Respondent’s contention that   he was employed on an 18 month fixed-term contract or that he was given a   written contract to this effect either upon the commencement of his   employment or at any other stage during his period of employment.

In summary, the Complainant submitted that he was unfairly   dismissed from his employment contrary to Section 6 of the Unfair Dismissals   Acts.

The Respondent is a diverse   company offering a wide range of services to the Irish construction and   utilities industry. The Respondent won a tender to install water meters in   the South East of the country on behalf of Irish Water. The Complainant was employed as a General   Operative by the Respondent on an 18 month fixed-term contract from 19^th   January, 2015 to 19^th July, 2016 to install these water meters   during the course of his employment.

The Complainant was initially assigned to work on the   installation of water meters in the Waterford region and he also worked in a   number of other locations during his period of employment with the   Respondent. The Complainant was transferred to work on a project in Cavan to   cover annual leave. When this work in   Cavan finished in June, 2016 the Complainant was offered alternative work   installing water meters in Dublin which was intended to bring him up to end   of his fixed term contract on 19^th July, 2016. However, the Complainant refused the work   in Dublin and informed the Respondent that he would prefer to move on as he   did not want to take as step backwards.

The Respondent denies that the Complainant was instructed   to take a few weeks annual leave following the completion of the work in   Cavan or that he was informed that he would be assigned to a new project in   Newbridge upon his return from annual leave. The Respondent accepts that the   Complainant took some annual leave at the end of the work in Cavan but it is   contended that he subsequently failed to return to work for the remainder of   his contract. The Respondent submitted   that the Complainant was due to continue in his employment until 19^th   July, 2016 as per his contract of employment and would have been given the   requisite notice as per his contract of employment in circumstances where the   fixed-term contract would have come to a natural end.

On the 19^th July, 2016, the Respondent’s   Payroll Manager, Ms. B, wrote to the Complainant noting that he had tendered   his resignation verbally. She sought   clarification in relation to the matter and informed the Complainant that she   would require the resignation in writing.   She also explained to the Complainant that all outstanding holiday pay   would be issued in addition to his P45 as soon as the last working day could   be confirmed. Ms. B also indicated   that she would be willing to discuss any issues that the Complainant had and   she asked that they set up a meeting for this purpose. The Complainant responded and indicated   that he would engage in a meeting but was only available on Thursday, 21^st   July or Monday, 25^th July and he suggested that the meeting take   place in a location somewhere between Dublin and Carlow. Ms. B suggested a meeting on the Monday in   Dublin as this is where the records were held but the Complainant refused   stating that he was unable to travel to Dublin for personal reasons which Mr.   A (Company Director) would be familiar with.   The Complainant again suggested a meeting in another location. However, Ms. B then requested the   Complainant to put his concerns in writing and she would follow up on the   following Monday.

The Complainant in his response refused to send his issues   via e-mail insisting that Mr. A knew about his issues as “he has caused them”. The   Complainant stated that his finishing date should be on the computer. Ms. B requested that the Complainant   reconsider his decision not to engage and to meet with her in Dublin. The   Complainant followed up by stating that Mr. A gave him two weeks’ notice on   the 28^th June, 2016 after he completed work in Cavan and then   refused to confirm if he was required thereafter. The Respondent submitted that this is not   how matters transpired.

The Respondent contended that the Complainant went on   annual leave following his work in Cavan.   Prior to this, the Complainant was advised that work was available in   Dublin, which he refused and the Complainant was also advised as to a   potential contract to be won at tender in Newbridge. The Complainant was advised that if the   Company was successful in the tender process there may be work available on a   new project. However, the Complainant   was never told that there was no further work for him for the duration of his   fixed term contract. This contract was   due to come to an end on the 19^th July, 2016.

The Respondent submitted that the Complainant was fully   aware as to the nature and duration of his employment and he failed to raise   a grievance during the course of his employment if in fact he did have a   grievance with his employer. The   Respondent submitted that it was completely unaware as to any issues with the   Complainant’s employment until they received a solicitor’s letter in July,   2016.

In summary, the Respondent denies that the Complainant was   dismissed from his employment. The   Respondent accepts that the Complainant’s contract did not expire on its   completion date, that being the 19^th July, 2016, as the   Complainant did not return to work following his annual leave thus breaching   the obligations under the contract of employment. The contract of employment was due to come   to a natural end on the 19^th July, 2016 and was not going to be   renewed in circumstances whereby the work had been completed during the   lifetime of the fixed term contract.

The Relevant Law

Section 1 of the Unfair Dismissals Act 1997 provides that:  

"dismissal", in relation to an   employee, means—

(a) the termination by his   employer of the employee's contract of employment with the employer, whether   prior notice of the termination was or was not given to the employee.

(b) the termination by the   employee of his contract of employment with his employer, whether prior   notice of the termination was or was not given to the employer, in   circumstances in which, because of the conduct of the employer, the employee   was or would have been entitled, or it was or would have been reasonable for   the employee, to terminate the contract of employment without giving prior   notice of the termination to the employer, or

(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(2)(b) of the Acts provides:

“2.-(2) Subject to subsection (2A), this Act   shall not apply in relation 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 censer aforesaid.” `

Section 6 of the Unfair Dismissals Act, 1977 provides:

“(1)   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 the circumstances, there were substantial grounds   justifying the dismissal.

…

(4) Without prejudice to the generality of   subsection (1) of this section, the dismissal of an employee shall be deemed,   for the purposes of this Act, not to be an unfair dismissal, if it results   wholly or mainly from one or more of the following:

(a) the capability, competence   or qualifications of the employee for performing work of the kind which he   was employed by the employer to do,

(b) the conduct of the employee

(c) the redundancy of the   employee, and

(d) the employee being unable   to work or continue to work in the position which he held without   contravention (by him or by his employer) of a duty or restriction imposed by   or under any statute or instrument made under statute.

…..

(6)   In determining for the purposes of this Act, whether the dismissal of an   employee was an unfair dismissal or not, it shall be for the employer to show   that the dismissal resulted wholly or mainly from one or more of the matters   specified in subsection (4) of this section or that there were substantial   grounds justifying the dismissal.

The fact of dismissal was very much in dispute between the   parties in the present case. Accordingly,   it is a matter for the Complainant to establish that he has been dismissed by   the Respondent.

The first key issue which I must consider relates to the   question as to whether or not the Complainant was employed on a fixed-term   contract basis by the Respondent. The Respondent contends that the   Complainant was employed on an 18 month fixed-term contract from 19^th   January, 2015 to 19^th July, 2016. The Respondent’s Director, Mr.   A, gave evidence that the company had secured an 18 month contract at the   material time to install water meters and had employed a number of workers,   including the Complainant, on an 18 month fixed contract basis to carry out   this work for the duration of the contract.   The Respondent submitted a copy of a written contract of employment   which it contended was given to the Complainant in relation to his   employment. I note that this written contract indicated that the Complainant’s   employment was for a fixed term of 18 months covering the aforementioned   period. I also note that the copy of the written contract submitted in   evidence by the Respondent was not signed or dated by either party. Mr. A   adduced evidence that it was normal practice within the company for draft   contracts to be issued to employees for perusal and they would subsequently   be returned and signed at a later date.   The Respondent also submitted a further document in evidence which has   been signed by the Complainant confirming that he had received a contract of   employment and a copy of the employee handbook from the Respondent company   (this document appears to have been dated 20^th May, 2016).

The Complainant denies the Respondent’s contention that he   was given this written contract during his period of employment or that he   was made aware at any juncture that his employment would be for a fixed term.   However, I note that the Complainant   did not dispute that he had signed the aforementioned document to confirm   that he had received a contract of employment from the Respondent. When questioned at the oral hearing, the   Complainant was unable to provide any cogent or compelling evidence as to why   he signed this document if, in fact he had not received a written contract   from the Respondent. On balance, I prefer the Respondent’s evidence on this   issue and I accept that the Complainant was furnished with a written contract   which clearly indicated that he was being employed on an 18 month fixed-term   contract which would expire on 19^th July, 2016.

The Respondent has contended that the Complainant’s   employment was due to come to a natural end upon the expiry of the fixed-term   contract and was not going to be renewed as the work in respect of which he   was employed would have been completed during the lifetime of the fixed-term   contract. I note that there was a   clause inserted into the written contract stating that “the Unfair Dismissals Acts 1977-2001 shall not apply to the   dismissal consisting only of the expiry of the fixed term of this contract”. Section 2(2)(b) of the Acts makes provision   for an exclusion which prevents an employee who has been engaged on a fixed   term contract from seeking redress under the legislation in circumstances   where the dismissal arises by virtue only of the expiry of the fixed term   contract. However, in order for an   employer to invoke this provision it is necessary to establish that the three   criteria in this provision have been complied with, namely:

•   The contract was in writing,
•   It was signed by both parties, and
•   It contained a statement that the Act shall   not apply to a dismissal consisting only of the expiry or cesser as   aforesaid.

Having regard to the foregoing, I am satisfied that the   written contract of employment was not signed by both parties and therefore,   only two of the three criteria have been met in the circumstances of the   present case. Accordingly, I am   satisfied that the Respondent cannot seek to rely upon the exclusion provided   for in Section 2(2)(b) of the Act in the circumstances of the present   case. However, I note that the   Respondent did not seek to invoke the exclusion provided for in Section   2(2)(b) of the Acts and has disputed the fact of dismissal.

Therefore, the next issue which I must consider is whether   or not the Complainant was actually dismissed from his employment within the   meaning of Section 1 of the Acts or if, as contended by the Respondent, that   he left this employment of his own volition after failing to return to work   following a period of annual leave in June, 2016.

There was a dispute between the parties in relation to the   circumstances surrounding the termination of the Complainant’s employment. The   Respondent, on the one hand, denies that the Complainant was dismissed and   contends that he failed to return to work following a period of annual leave   in June, 2016. The Respondent contends that the Complainant was informed when   the job finished in Cavan that there was further work available for him in   Dublin which would bring him up to the end of his fixed term contract on 19^th   July, 2016. However, it is the   Respondent’s position that the Complainant refused to take up the offer of   the additional work in Dublin on the basis that “he did not want to take a step backwards”. The Respondent accepts that the Complainant   took some annual leave at the end of the work in Cavan but contends that he subsequently   failed to return to work and thereby left the employment of his own   volition. The Respondent denies the   Complainant’s contention that he was informed there would be further work for   him on a new job in Newbridge. Mr. A   gave evidence that the Respondent was only in the process of tendering for   this job and therefore, the company was not in a position to offer the   Complainant work on a job which had not yet been secured.

The Complainant, on the other hand, claims that he was   instructed by the Respondent to take a few weeks holidays after the job that   he had been working on in Cavan came to an end on 13^th June,   2016. The Complainant claims that he   was informed by the Respondent at that juncture that he would be assigned to   a new project in Newbridge but there would be a short delay before this job   commenced. The Complainant claims that he was unable to contact the   Respondent’s Director, Mr. A, over the following three weeks despite numerous   attempts to do so by telephone and text messaging, in order to ascertain when   he would be resuming work. The   Complainant stated that he communicated with the Respondent’s Payroll   Manager, Ms. B, during this period but felt as if he was being “fobbed off”   in terms of his efforts to arrange a meeting with Mr. A to obtain   clarification in relation to his employment. The Complainant contends that   the company vehicle and mobile phone which he had used during his employment   were taken back by the Respondent on 18^th July, 2016. The Complainant contends that despite his   numerous attempts to obtain clarification from the Respondent in relation to   his position he was afforded any further work, and consequently, was   dismissed from his employment.

Having considered the totality of the evidence adduced, I   have found the Respondent’s evidence to be more compelling, and on balance, I   am satisfied that the Complainant was not dismissed from his employment and   that he left his employment of his own volition prior to the expiry of his   fixed term contract which was due to end on 19^th July, 2016. In coming to this conclusion, I have taken   into account the following factors:

•   I accept the Respondent’s evidence that the   Complainant was fully aware from the outset of his employment that he was   being employed on a fixed term contract which was due to expire on 19^th   July, 2016.
•   On balance, I prefer the Respondent’s evidence   regarding the situation that pertained in relation to the Complainant’s   employment when the job that he had been assigned to in Cavan concluded in   June, 2016. I have found Mr. A. to be   a credible witness and I accept his evidence that the Complainant was offered   further work in Dublin following the conclusion of the work in Cavan which   would have brought him up to the date that his fixed term contract was due to   expire on 19^th July, 2016. I also accept Mr. A’s evidence that the   Complainant informed him at that juncture that he did not wish to accept this   offer and that he would “prefer to move on”.   I do not accept the Complainant’s contention that he was informed by   Mr. A at that juncture that he would be assigned to work on a project in   Newbridge after taking annual leave. In   this regard, I note that Mr. A gave compelling evidence that the company was   only in the process of tendering for the prospective job in Newbridge, and   therefore, was not in a position to inform the Complainant that he would be   assigned to this job as the contract had not been secured at that   juncture.
•   There are also a number of inconsistencies in   relation to the Complainant’s account regarding the manner and date upon   which he contends that his employment was terminated by the Respondent. The   Complainant has indicated on his Complaint Referral Form that he was   dismissed on 13^th June, 2016 whereas in an e-mail which he sent to   Ms. B on 28^th July, 2016 the Complainant states that Mr. A “gave me two weeks notice on the 28/6/16   at 9:30 am by phone”. I note that   Mr. A denies that he had any such conversation with the Complainant on that   date. On balance, I prefer Mr. A’s   evidence on this matter and I am satisfied that the version of events as   contended by him is a more accurate and credible account of the interaction   that took place between the parties following the conclusion of his work in   Cavan in June, 2016.
•   I have also taken note of the e-mail exchange   between the Complainant and the Respondent’s Payroll Manager, Ms. B, which   took place on dates between 19^th July, 2016 and 2^nd   August, 2016 (copies of which were submitted in evidence). I note that Ms. B   initiated contact with the Complainant by way of e-mail on 19^th   July, 2016 and in this e-mail she refers to a conversation that she had with   the Complainant a couple of weeks ago where the Complainant had indicated to   her that he had given his notice to Mr. A. I accept that Ms. B did not attend   the oral hearing to give evidence on this matter; however, I am satisfied   that this e-mail is corroborative of the evidence given by Mr. A to the   extent that the Complainant left the employment of his own volition rather   than being dismissed.  

Having   regard to the foregoing, I find that the Complainant was not dismissed from   his employment within the meaning of Section 1 of the Acts and that he left   his employment of his own volition prior to the expiry of his fixed term   contract. Accordingly, I find that the   complaint under the Act is not well founded and must fail.

I find that the Complainant   was not dismissed from his employment within the meaning of Section 1 of the Unfair   Dismissal Acts and that he left his employment of his own volition prior to   the expiry of his fixed term contract.   Accordingly, the complaint under the Acts is not well founded.

Unfair Dismissals   Acts – Fixed Term Contract – Section 2(2)(b) exclusion - Dismissal in dispute   – Employee resigned – Complaint not well founded