Complainant

Respondent

Anonymised Parties

A Project Administrator

An Educational Body

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-00011102-001

03/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00011102-002

03/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00011102-003

03/05/2017

The complainant had been engaged on the basis of a number of fixed term contracts, the last of which concluded at the end of December 2016.

In addition to written and oral submission at the hearing both parties made farther written submissions which have been fully considered.

There are three complaints.

The first is that the complainant was unfairly dismissed by the respondent.

Secondly, she says that she did not get the required minimum notice and finally that she was penalised for making a bullying complaint by not having her contract renewed.

The complainant says that an entitlement to statutory notice is not excluded by its absence from a fixed term contract. All employees are entitled to a notice payment.

In relation to the jurisdiction of the adjudicator in respect of a termination arising from the termination of a fixed term contract the complainant draws attention to the provisions of the Unfair Dismissal Act at section 2a where the exclusion of jurisdiction is qualified by the requirement that the contract ended ‘only by operation of the term’ of the contract.

The complainant submits that, in this case there were factors which contributed to the termination other than the simple expiry of the contract terms, and that therefore the complaint under the Act is within jurisdiction.

The employment did not end solely as a result of an external funding issue and was substantively and procedurally unfair.

The respondent also failed to follow the procedures in respect of a termination of employment laid down in the contract of employment.

In its further submission, the complainant says that the complaints under both the Unfair Dismissals Act and the Protection of Employees (Fixed Term Work) Act, although it is accepted that relief may not be granted under both.

The complainant had three fixed term contracts in the calendar years 2014, 2015 and 2016 (the first of these actually commenced on February 1st 2014).

The work undertaken on these contracts was subject to external funding and in the course of her first-year funding was confirmed for 2015 and the second contract awarded.

The same happened the following year and her contract clearly stated that he engagement was subject to the external funding.

In the course of 2015, the respondent decided to embark on an internal re-structuring which adversely impacted on the complainant and to which she objected. She made her bullying complaint on August 1st 2016 arising from these discussions. This bullying complaint was fully addressed.

The respondent then decided to end the employment on the conclusion of her 2016 contract on December 31st. This was initially made clear to her on December 2015 and she was made aware that her role in 2016 would be to facilitate the re-structuring and her employment would terminate at the end of the year.

This was repeated to her at a meeting on July 15th, 2016.

Her letter of notice was issued on December 14th and also paid a redundancy payment as she had, by that time 104 weeks’ service.

The respondent says that, in respect of the unfair dismissal complaint, there is no jurisdiction to hear the complaint as the complainant’s employment terminated by reason of the expiry of her fixed-term contract. She had been fully on notice of this for a year, and was given notice in accordance with her contract.

Regarding the complaint under the Minimum Notice Act, there was no requirement to give notice in her contract, as she was on notice since she signed it as to when it would expire. But, in any event, she was given notice on December 14th 2016 (and earlier on July 5th).

Regarding the complaint of penalisation, this relates to her having been ‘unfairly selected’ for redundancy.

The respondent states that the complainant may not pursue an alleged termination under both the penalisation provisions and the Unfair Dismissal Act but repeats that the employment terminated in line with its contractual terms.

In its latter phase, it had an element of fixed purpose which had been concluded.

In its further submission, the respondent addressed the possible additional grounds for a penalisation complaint; that her contract was terminated to avoid giving her a contract of indefinite duration.

However, the complainant has not identified any incidence of invoking her rights under the Protection of Employees (Fixed Term Work) Act 2003, or of having made a complaint which would render any alleged subsequent action by the respondent an act of penalisation.

In addition, the only complaint made by the complainant in August 2016 was eight months into her contract and a month after a meeting with her manager in July at which she was told that the contract would end on its termination date.

The respondent says that here were no grounds for the termination of her employment other than the expiry of the contract such as would bring it within the jurisdiction of the Unfair Dismissals Acy, 1977.

There were very substantial issues raised by the complainant about various changes in the management of the respondent’s operations and how they impacted on her and contributed to the decision to terminate her employment.

In the initial and further written submissions there is a great deal about the issues arising from the external funding and the proposed reorganisation of various activities within the respondent’s business, and its impact on the complainant. She was clearly very unhappy with those changes.

For example, her dissatisfaction with events is expressed in the submission where she states that ‘the rationale which existed at the end of 2015 for continuing her role still persisted at the end of 2016’. She was clearly very unhappy at the decision not to renew her contract.

In the complainant’s ‘further submission’, it is asserted that ‘no evidence’ of what motivated the decision to terminate her employment ‘was invited by the adjudicator’.

This becomes relevant if the complainant’s submission is successful on the point that the complaint falls within the jurisdiction of the Unfair Dismissals Act based on its argument that the termination was for reasons which went beyond the simple operation of the terms of that contract.

The respondent made a written submission to the hearing running to some twelve typed pages, and a further shorter submission and a very substantial set of supporting emails and other documents, all of which have been fully considered in the course of the hearing and subsequently.

Significant submissions were, in fact, made at the hearing both by counsel and the complainant about events, in particular in the course of 2015 and about various relationship difficulties within the respondent, which are represented by the reference above to the complainant’s view that her role was still required and her contract should have been extended.

In approaching this the first issue raised by this is whether the interpretation of the Unfair Dismissals Act offered by the complainant has any validity.

That argument is, that the Unfair Dismissals Act will apply, even to a fixed term contract if the contract was brought to, or reached an end other than by the natural expiry of its term.

But as a matter of fact, that is what precisely happened in this case. The complainant’s argument might have some chance of success in a situation where a contract ended before it was due to end, and a case could be made out that the termination could be attributed to some other reason, other than whatever notice requirement existed.

But when it ends on the precise day foreseen for the previous twelve months this becomes a difficult case to make. The complainant is saying that, even though it ended on the precise day it was due to end, it ended for reasons other than the natural expiry of its term.

The burden of presenting relevant evidence is primarily a matter for the parties, even within an inquisitorial system.

But even if there were evidence that there were factors which led the respondent not to renew the contract (and there were none, and some to the contrary) this does not mean that the dismissal did not consist only of the expiry of the term without its being renewed under the same contract.

It is a creative, but entirely fallacious argument on the facts in this case. The complainant was clearly very unhappy at her treatment at the hands of the respondent, but she freely entered into a number of fixed term contracts and confirmed to the hearing in oral evidence that she understood the significance of entering into what turned out to be the final one.

Her dissatisfaction with how the changes proposed by the respondent in how it intended to conduct its future operations was very clear throughout the hearing, and indeed very understandable given its implications for her.

However, she entered into the 2016 contract with her eyes wide open, and knew it would come to an end on the due date. She may have been disappointed that it was not renewed as others had been in the preceding two years (as in the previous year when it had also been at risk) but it ended entirely lawfully.

After her meeting with management on July 5th, (following which she complained about being penalised and bullied), her manager wrote the following day stating that the role she had been operating ‘will no longer exist once the final integration of the …work that you have been doing are integrated into the [respondent] administrative functions.’

The formal bullying complaint was made, she says in June, the respondent says on August 1st.

The complainant’s submission that ‘the rationale which existed at the end of 2015 for continuing her role still persisted at the end of 2016’ is one on which she is entitled to have an opinion but it is ultimately a matter for the respondent management. Her view of that situation is contradicted by its evidence.

I find that the complainant’s contract terminated in accordance with its terms and does not fall within the jurisdiction of the Unfair Dismissals Act, 1977.

For the same reason, it does not represent an act of penalisation, and for the additional, indeed much stronger reason that the complainant failed to identify which assertion of her rights under the 2003 resulted in this alleged act of retaliation.

Finally, the complainant received notice of the termination of the contract on December 12th 2016 and no case arises under this complaint.

For the reasons set out above I do not uphold complaint CA-00011102-1,2 and 3 and they are dismissed.

Unfair dismissal, fixed term contracts