Complainant

Respondent

Anonymised Parties

{An Employee}

{A Legal Services Company}

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00017652-001

26/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00017652-002

26/02/2018

The Complainant was employed with the Respondent from 18th September 2017 to 17th January 2018 as a systems administrator.

The Complainant says he was informed on 17th January 2018 that his contract was terminated immediately due to the high level of absence since employment. He was subsequently notified that the Respondent believed he was unable to fulfil the full terms of his contract as he applied for alternative roles, was seen attending an interview and applied for a role in a sister company.

The Complainant was employed on a fixed-term contract from 18th September 2017 to 22nd December 2017. This was extended on 18th December and was due to expire in March 2018.

During the duration of his contract, the Complainant’s role was advertised and interviewed by external candidates. The Complainant asked to speak to the HR Manager and his manager regarding this and the extension of his contract. He was informed no decision was made.

On the internal website for the company, there was a link to apply for the Complainant’s role which brought him to an external website. He was notified the week his contract was expiring that this would be extended for a further 2 months.

There was no appearance by the Respondent at the hearing.

I have heard the Complainant’s evidence and have considered the submissions made.

His complaint relates to an alleged breach of S10 of the Protection of Employees (Fixed-Term Work) Act 2003 which provides:

“S10(1)An employer shall inform a fixed-term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees.

(2) The information referred to in subsection (1) may be provided by means of a general announcement a suitable place in the undertaking or establishment……………”

The Complainant was on a 3 month fixed-term contract with the Respondent. This was extended on 18th December until March 2018.

He discovered that his contract role was being advertised externally by a recruitment company while employed. There were other permanent roles advertised for junior accounts assistants also. He was not given an Employee Handbook. He was never informed of the opportunity to obtain a permanent role in the Respondent through internal applications for the roles.

The obligation of an employer pursuant to S10 of the Protection of Employees (Fixed-Term Work ) Act 2003 has been interpreted by the Labour Court in Aer Lingus v A Group of Workers FTC/04/03       widely … ” the obligation thus created is not just to inform the employees in question of vacancies for permanent positions but of vacancies which may enable them to obtain permanent positions.”

Circulating information on a company intranet has been found not to be sufficient notification to employees in IBM France v Chathard (Court de Cassation).

The complaint is well founded as the Respondent has not discharged its obligation pursuant to S10 of the Act, and award the Complainant 500 euro compensation for the breach.

The complaint is well founded and I award the Complainant 500 euro compensation for the breach.

The Worker was employed with the Respondent from 18th September 2017 to 17th January 2018 as a systems administrator.

CA-00017652-002

The Worker was employed on a fixed-term contract from 18th September 2017 to 22nd December 2017. This was extended on 18th December 2017 and was due to expire in March 2018.

During the duration of his contract, the Worker’s role was advertised and interviewed by external candidates. The Worker asked to speak to the HR Manager and his manager regarding this and the extension of his contract. He was informed no decision was made.

The Worker was not informed of any issue prior to his dismissal. He did not have a probation review. He was aware that his post was being advertised continually externally during this period. He was absent for 17 days. He had a serious case of influenza and was medically certified for 14 days sick-leave.

The Worker says he was informed on 17th January 2018 that his contract was terminated immediately due to “high level of absence since employment” and concerns he would not be able to fulfil the terms of his contract. He was subsequently notified that the Respondent believed he was unable to fulfil the full terms of his contract as he applied for alternative roles, was seen attending an interview and applied for a role in a sister company.

The company did not comply with fair procedures as he was not aware there was an issue with his absences. The company raised his punctuality subsequent to his dismissal.

There was no appearance by the Respondent at the hearing.

I have heard the Worker’s evidence and have considered the submissions made. The Respondent did not object to the investigation of the dispute by the Adjudication Officer.

The Worker complains that he was dismissed without any opportunity to address the issues raised by the Respondent. He was not notified in advance of the issues arising and given a proper opportunity to address these. The Worker’s contract provides for a probation period of 1 month. He was not given a probation review. He was absent for 2 weeks on unpaid sick-leave which was medically certified. There was 3 additional days absence also. The Worker’s absences are substantial in the context of a short employment of 3.5 months.

The Worker’s punctuality and applications for other roles were raised as concerns following his dismissal but he did not have an opportunity to address any concerns prior to termination, nor was the disciplinary procedure applied. He was dismissed summarily and was not aware of the applicable performance or disciplinary procedure nor right of appeal. His contract was terminated without notice, in breach of fair procedures.

In the circumstances, I recommend payment of 2 weeks financial loss to the Worker of 1,083 euro gross.

I recommend payment of 2 weeks financial loss to the Worker of 1,083 euro gross as his contract was terminated in breach of fair procedures.