ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference:  ADJ-00011205

Parties:

Complaint(s):

Date of Adjudication Hearing:  29/05/2018

Workplace Relations Commission Adjudication Officer:  Caroline McEnery

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.

Background:

The Complainant alleges that he was dismissed from the Respondents organisation and that his dismissal was unfair.

Summary of Complainant’s Case:

The Complainants case is as follows as per the Complaint form.

On the 11 July 2017 he informed the Assistant Day Manager that he could not do cover as he was pre-booked on another job. On the 14 July 2017 the Assistant Day Manager rang him about other cover work that he could not do. The Complainant feels that the Assistant Day Manager was very put out by this. There was no contract in place for this cover work. The Complainant stated that the Assistant Day Manager told him if he didn’t want him in the Respondents organisation then he wouldn’t be in the Respondent organisation.

The Complainant stated that the next day he rang the Night Manager and told her that he was available for night classes in the end of September. On the 17 July 2017 the Night Manager emailed him with the schedule for September classes. The Complainant emailed back to say that he was available to do these classes.

On the 31 August 2017 the Night Manager emailed him saying classes will not run. When the Complainant rang her back she told him that day management had cut his hours and that night management had no problem with him and were very happy with what he had done in past classes.

The Complainant alleged that the Respondents excuse was that there were not enough numbers for the class. The Complainant states that if this was the case why was he emailed on the 31 August 2017 with a month to go still before the classes started.

The Complainant stated that he knows 3 people that rang the Respondents Organisation about these classes and each were told to apply again in January 2018.

In January 2018 the Assistant Day Manager offered the classes to another instructor. The Complainant feels that the Assistant Day Manager is behind this as he is the only person in management that he had to deal with. The Complainant feels that the Assistant Day Manager has bullied him out of the position of Night Class Instructor. The Complainant has stated he has lost out on €6,000 per year on night classes which he would have done for another 15-20 years in addition to day cover work. The Complainant stated he really enjoyed doing this work and feels he can’t do cover work anymore with the Respondents organisation. The Complainant noted that the day cover he doesn’t mind about as they are entitled to have other cover instructors but the way his night classes were cut was bad form especially when he was doing a very good job and getting very good results from his class.

Summary of Respondent’s Case:

The Complainant was employed for various periods between 2015 and 2017 under specific purpose contracts of employment as a Cover Instructor and under specific purpose contracts of employment as a Night Course Trainer with a start date and a finish date.  Cover Instructor specific purpose contracts are for the purpose of covering Instructors who are absent due to sick leave, annual leave etc.  Separately Night Course Trainer specific purpose contracts are for the purpose of delivering evening courses.  The Complainants last specific purpose contract for Night Course Trainer expired on the 29 March 2017.

The Complainant was employed as a Cover Instructor as follows;

1. 3, 4 and 5 June 2015 for the specific purpose of cover for Metal Fabrication
2. 13 July 2015 for the specific purpose of cover for Metal Fabrication
3. 2 September 2015 for the specific purpose of cover for Metal Fabrication
4. 10 September 2015 for the specific purpose of cover for Metal Fabrication
5. 19, 23 and 29 October 2015 for the specific purpose of cover for M.A.M.F.
6. 16, 17, 26 and 27 November 2015 for the specific purpose of cover for Fitting
7. 10, 14, 17, 21, 22 and 23 December 2015 for the purpose of cover for Fitting
8. 18 December 2015 for the specific purpose of cover for Fitting
9. 4th – 8 January 2016 for the specific purpose of cover for Fitting
10. 21 January 2016 for the specific purpose of cover for Fitting
11. 15, 16, 29 February and 1 March 2016 for the specific purpose of cover for Metal Fabrication
12. 29 – 31 March 2016 for the specific purpose of cover for Metal Fabrication
13. 30 June 2016, 1, 4, 5 (0.5 day), 6, 7, 8, 11, 12 (0.5 day), 13, 14, 15, 18, 19 (0.5 day), 20, 21, 22, 25 (0.5 day) July 2016 for the specific purpose of cover for Metal Fabrication
14. 24 and 25 August 2016 for the specific purpose of cover for Fitting
15. 22 August, 8 and 9 September for the specific purpose of cover for Metal Fabrication
16. 6, 12, 13, 20 and 24 – 28 October 2016 for the specific purpose of cover for Metal Fabrication/Plumbing
17. 24, 28, 29 and 30 November 2016 for the specific purpose of cover for Fitting
18. 8 December 2016 for the specific purpose of cover for Plumbing
19. 30 January and 8 February 2017 for the specific purpose of cover for Metal Fabrication
20. 16 February 2017 for the specific purpose of cover for Metal Fabrication
21. 5, 6, 10, 11, 12 and 13 April 2017 for the specific purpose of cover for Fitting
22. 18, 19 and 20 April 2017 for the specific purpose of cover for Metal Fabrication
23. 20, 21 (3.25 hours), 22 and 23 March 2017 for the specific purpose of cover for Metal Fabrication
24. 24 April and 9 May 2017 for the specific purpose of cover for Metal Fabrication
25. 28th April 2017 for the specific purpose of cover for Metal Fabrication
26. 8th and 10th May 2017 for the specific purpose of cover for Metal Fabrication
27. 17 – 18 July 2017 for the specific purpose of cover for Plumbing

The Complainant was employed on 4 separate specific purpose contracts of employment, each contract for a period of 10 weeks, 2 nights per week, as a Night Course Trainer as follows;

1. 28 September 2015 to 2 December 2015
2. 25 January 2016 to 4 April 2016
3. 26 September 2016 to 5 December 2016
4. 23 January 2017 to 29 March 2017

The Respondent submits that this equates to less than 1 year’s continuous service, therefore this claim does not come under the remit of the Unfair Dismissals Act 1977.

Each contract of employment stated that ‘The Unfair Dismissal Act 1977 – 2007, will not apply to a dismissal which consists only of the cessor of the fixed term of your employment’.  On this basis the Respondent submits that this does not come under the remit of the Unfair Dismissals Act 1997.

The Respondent stated that the Complainant was dismissed and that his dismissal was not unfair because there were substantial grounds due to insufficient demand the Training Centre was not in a position to offer the Turning Course in the autumn of 2017. 

The Respondent stated that the rule generally applied for likelihood of filling a course is that there would have to be in excess of 3.5 applicants to 1 training place therefore 21 applicants, at a minimum, would be required.  There were 15 applicants in September 2017.  The course had run the previous term with only 4 starting despite a strong application listing and the Respondent did not want to be, again, in a position of starting a class with less than 6 applicants. There were 16 applicants for spring 2018, insufficient demand to justify running the course.

Each contract of employment clearly states that ‘You acknowledge and accept that should an insufficient number of trainees register for the course to which this contract relates, your contract will not proceed’.  This clearly indicates that it is possible, even after issue of contract, that there may be insufficient numbers to sustain the viability of the class.

On average there are 5 to 6 courses which would be scheduled, but, due to insufficient numbers on the waiting list do not run.  A total of 7 courses did not run in autumn 2017 due to insufficient demand.

The Complainant refers to an e-mail sent to him on 17 July 2017 with the schedule for September 2017 (Appendix D).  This e-mail was sent as part of the normal procedure in the planning process and clearly stated ‘Courses will run subject to demand and therefore will not run if there are not enough participants’. 

It is clear from the contracts that issue that there is a practice of insufficient numbers of trainees registering for courses thus leading to withdrawal of the course. The Complainant is obviously disappointed that he did not receive hours but not all applicants accept places, therefore, as there were not enough applicants the Respondent was not in a position to offer the Complainant a contract.

The Complainant in his submission refers to day management and night management and appears to suggest that there is a link between the fact that he refused Cover Instructor hours and not being offered a Night Course Trainer contract.  These are completely unconnected. All training activities of the Training Centre are the responsibility of the Training Centre Manager.  Night training activity is run outside of normal working hours and responsibility for these is allocated to non-management staff members. These staff report to the Training Centre Manager in all matters pertaining to the running of the night courses.

The Respondent states that the Complainants claim under Section 8 of the Unfair Dismissals Act 1977 is not well founded.

Findings and Conclusions:

Section 2(1)(a) of the of the Unfair Dismissals Act 1977 states:

This Act shall not apply in relation to any of the following persons:

an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him and whose dismissal does not result wholly or mainly from the matters referred to in section 6 (2) (f) of this Act

The Unfair Dismissals Act, 1977, Section 2 (2) (a):

(2) This Act shall not apply in relation to—

(a) dismissal where the employment was under a contract of employment for a fixed term made before the 16th day of September, 1976, and the dismissal consisted only of the expiry of the term without its being renewed under the same contract, or

(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.

I find that the Complainant was dismissed where the employment was under a contract of employment for a specified purpose. I am of the belief that the purposes of those specific purposes contracts was, at the time of its making, incapable of precise ascertainment.

I find that the dismissal consisted only of the expiry of the term without its being renewed under the contract. It is confirmed that the contract was in writing and was signed on behalf of the Respondent and by the Complainant and provided information that the Unfair Dismissals Acts would not apply to a dismissal consisting only of the expiry or cesser of the contract.

Decision:

Section 7 of the Unfair Dismissals Acts, 1977 – 2015 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. I find that the Complainants complaint does not fall within the remit of the Unfair Dismissals Acts and as a result the claim is not well founded and fails.

Dated:   24 August 2018

Workplace Relations Commission Adjudication Officer:  Caroline McEnery