UDD182

This matter comes before the Court as an appeal by Richard Moran (the Appellant) of an Adjudication officer’s decision made under the Unfair Dismissals Acts, 1977 to 2015 (the Act) in a complaint against his former employer Limerick City Council (the Respondent).

In a decision dated 1^stMarch 2017 the Adjudication Officer decided that the complaint of unfair dismissal was not well founded.

The Appellant commenced employment with the Respondent on a one year fixed term contract of employment on 17^thNovember 2014. He was dismissed on 16^thNovember 2015, the date which coincided with the expiry of his one year fixed term contract.

Preliminary issue

The Respondent submitted that the provisions of the Act do not apply to the dismissal of the Appellant. The Court decided to deal with that aspect of the within matter as a preliminary matter insofar as the Court’s finding on this matter could be determinative of the entire case.

The Respondent submitted that the Act at section 2(2)(b) provides that the protection of the Act does not apply when the dismissal arises only from the expiry of a contract’s term or the specified purpose is completed. The Respondent submitted that in the within case the Appellant was dismissed solely because of the expiry of the term of his contract.

The Respondent drew the Court’s attention to the Act at section 2(2)(b) which provides as follows;

• 2 Subject to subsection (2A), this Act shall not apply in relation to
  • (1)( 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.

The Appellant accepted the content of his contract as submitted by the Respondent but also submitted that the termination of his employment was related to factors other than the expiry of the term of that contract. The Appellant submitted that at or about the time of his appointment to a fixed term contract five other persons were similarly appointed and engaged in the same work as the Appellant. He also submitted that all other appointees then remaining in the employment of the Respondent were retained by the Council on the expiry of their fixed term contracts. He submitted that in his case the Respondent had engaged a process of performance review and that it was the fact of his involvement in this process which was the reason his employment terminated.

The Respondent, when questioned by the Court, accepted that all other fixed term colleagues of the Appellant who had been appointed to carry out similar work at or about the same time as the Appellant and who remained in the employment were retained beyond the expiry of their contracts. The Respondent explained that the six appointees, of which the Appellant was one, were appointed to meet a need of the Respondent. The Respondent, in September 2015, secured approval for the recruitment of permanent staff to meet the needs of the Respondent which were at that time being fulfilled by the staff employed on fixed term contracts. The process of appointing permanent staff was completed in April 2016 and the continuation in employment of fixed term contract staff was to provide for service delivery in the interim period prior to recruitment of the permanent staff.

When questioned by the Court the Respondent accepted that the Appellant had been engaged in a process of performance review and that if he had not been so engaged he would have been retained beyond the date of expiry of his fixed term contract.

The Court has considered the submissions of the parties on the application of the Act to the dismissal of the Appellant. The Court concludes that, but for the fact he had been engaged in a process of performance review, the Appellant, in common with his fixed term colleagues, would have been retained in employment by the Respondent beyond the date of expiry of his fixed term contract of employment. In order for the Respondent in the within matter to succeed in the proposition that the dismissal of the Appellant is excluded from the provisions of the Act it must establish that the dismissal

• ‘consisted only of the expiry of the term without its being renewed under the said contract or the cesser of the purpose’.

The Court therefore determines that the exclusion set out in the act at section 2(2)(b) does not apply to the dismissal of the Appellant.

Position of the Respondent

The Respondent submitted that in the course of the employment of the Appellant the Respondent had, on a continuous basis, raised concerns with the Appellant regarding his performance and competence. This process is part of the normal assessment process undertaken by all employers in relation to new employees according to the Respondent.

The Respondent set out the chronology of events in this regard as follows:

• 
  •The Appellant commenced employment on 17^thNovember 2014 and meetings took place between Ms O’K, the Appellant’s line manager, and the Appellant on 24^thNovember 2014 and 12^thDecember 2014 where issues in relation to the Appellant’s performance were identified. The Appellant was given an opportunity to respond to each area of concern. The Respondent submitted that the Appellant committed to taking the necessary action to improve the situation.

  •On 16^thJanuary 2015 Ms O’K completed a three month evaluation form wherein she concluded that the Appellant was not considered suitable for the role he then occupied. The Appellant took issue with the findings of the evaluation and requested that the issue be escalated. The Appellant made contact with the Respondent’s Head of IT, Mr JD, who invited the Appellant to an appeal hearing on 10^thFebruary 2015. The Respondent submitted that in advance of this hearing a list of specific issues as drawn up by Ms O’K were supplied to the Appellant including specific case numbers. All of the issues raised by Ms O’K and the responses to those issues by the Appellant were examined at the meeting on 10^thFebruary 2015. The attendance at that meeting included the Appellant’s Trade Union representative, the head of IT and a representative of the Respondent’s HR department.

  •A follow up meeting took place on 25^thMarch when the Respondent’s head of IT noted the improvement in the work of the Appellant and assured the Appellant that no disciplinary sanction would be imposed at that time.

  •On 2^ndOctober 2015 a six month and a nine month evaluation of the Appellant’s performance were conducted. The six month evaluation was conducted by Ms O’K and the nine month evaluation by Ms CR. The Respondent submitted that, based on the Appellant’s performance to date, neither Ms O’K nor Ms CR recommended the continuation of the Appellant’s contract of employment.

  •The Appellant appealed the findings of both evaluations to the Respondent’s head of IT. The Respondent’s head of IT reviewed the evaluations, the detailed list of issues raised and the responses provided by the Appellant. In a letter dated 3^rdNovember 2015 the Respondent’s head of IT deemed the evaluations of Ms O’K and Ms CR to be both fair and appropriate.

The Respondent submitted that the contract of the Appellant was not extended based on business objectives and it was not required.

Position of the Appellant

The Appellant submitted that his dismissal was as a result of unfavourable reviews by his line management. The Appellant submitted that he was denied the opportunity to challenge those reviews and that the Respondent acted outside its own procedures in dismissing the Appellant without due process.

The Appellant submitted that he was recruited on a fixed term contract on 17^thNovember 2014. He submitted that he received no training on recruitment. He submitted that he sought training from the Respondent but that his request, which was supported by a Mr EK, was refused by Ms O’K.

The Appellant submitted that Ms O’K, his line manager, convened a meeting on 10^thJanuary 2015 wherein she indicated that she was carrying out a three month review. Ms O’K, at that meeting, was extremely critical of the Appellant, and advised that he should no longer be continued in his employment. She advised that the Appellant could appeal her evaluation to the Respondent’s head of IT.

The Appellant submitted that he received a letter on 22^ndJanuary 2015 inviting him to a disciplinary interview on 26^thJanuary 2015. The timing of that interview was changed for stated reason to 30^thJanuary 2015. This date was again changed but the change of date was not notified to the head of IT Mr JD. Mr JD attended for that meeting and consequently, on that date, invited the Appellant into a meeting room for a ‘one on one’ chat without the presence of his representing trade union official.

The Appellant submitted that, at that meeting, Mr JD produced a two page document which had been prepared by Ms O’K listing a number of job related incidents that she was highlighting in support of her review. That document was in the form of ticket or job numbers that Ms O’K had an issue with in relation to the Appellant’s performance.

The disciplinary meeting was subsequently convened on 4^thFebruary 2015 but did not proceed on foot of an objection by SIPTU, the Appellant’s Trade Union, to the participation of Mr JD following the ‘one on one’ meeting of 30^thJanuary 2015. Ultimately that meeting did proceed on 10^thFebruary 2015 on the basis that Mr JD committed that his comments made on 30^thJanuary 2015 would not form part of the process.

The Appellant submitted that, at the meeting on 10^thFebruary 2015, he gave a detailed response to the issues raised in the list prepared by Ms O’K and that Mr JD reverted to the Trade Union one month later to confirm that following the explanations of the Appellant, no disciplinary issues arose from the list prepared by Ms O’K.

The Appellant submitted that he was, on 16^thJune 2015, invited to a six month review meeting with Ms O’K. He submitted that he was the only team member invited to such a meeting. He submitted that on 17^thJune 2015 the meeting took place and was converted to a ‘one on one’ meeting which was very cordial and wherein no issues related to work performance were raised by Ms O’K.

The Appellant submitted that the team of fixed term workers were advised by the Respondent at a meeting in August 2015 that approval had been received for the filling of temporary posts on a permanent basis but that the filling of the posts might not occur until March 2016. The Respondent advised at that meeting that the fixed term contracts of the team would be extended to December 2015 and their holiday entitlement adjusted as a result. The Appellant submitted that his holiday entitlement was increased in common with the remainder of the team.

The Appellant submitted that on 29^thSeptember 2015 he was invited to a six and nine month review meeting to be attended by Ms O’K and Ms CR. That meeting took place on 3^rdOctober 2015. The Appellant submitted that Ms O’K was, at this meeting, again critical of his work performance and she articulated a view that the contract of the Appellant should not be renewed. The Appellant submitted that Ms O’K did not give details of work related issues at that meeting but did undertake to supply such detail subsequently. The Appellant submitted that Ms CR, who had recently returned to work, supported Ms O’K’s recommendation that the Appellant’s contract should not be renewed.

The Appellant submitted that, following this review, he e-mailed the Respondent’s head of IT, Mr JD, and advised that he wished to appeal the outcome of the six and nine month reviews and that he would be seeking the involvement of the Respondent’s HR department and his Trade Union as part of that process. Mr JD responded asking the Appellant not to make any arrangements and undertaking to respond the following week.

The Appellant subsequently received a six page document from Ms CR outlining a list of issues she had with the work of the Appellant and he responded in detail to this document. On 23^rdOctober 2015 he received a document from Ms O’K outlining a list of 15 issues she had with his work and he responded comprehensively to this document also.

The Appellant submitted that on 3^rdNovember Mr D called the Appellant to a meeting room and handed the Appellant a pre-prepared letter in which he confirmed that he believed the six and nine month reviews were both fair and appropriate. The Appellant immediately objected on the basis that he had requested the involvement of both his Trade Union and the Respondent’s HR department as part of his appeal of the six and nine month reviews. The Appellant submitted that Mr JD advised the Appellant that he was free to take up any issue with the HR department.

The Appellant submitted that he received a letter from the HR department two days later advising of the conclusion of his contract on 16^thNovember 2015 and of the reduction of his previously adjusted holiday entitlement.

Upon receipt of this letter the Trade Union immediately lodged an appeal with the Respondent’s HR department. The Respondent advised in response that it had no objection to meeting to hear any matters which the Appellant wished to appeal. An appeal hearing was arranged for 16^thNovember 2015 which was the Appellant’s last working day. The appeal was conducted by Mr JD, a HR official with the Respondent, who advised that while he was prepared to hear the Appellant’s grievances he had no authority to overturn the decision to terminate the contract of the Appellant.

The Appellant submitted that his employment was terminated in a procedure devoid of fair procedure or natural justice. He submitted that he was contractually bound by the Respondent’s grievance and disciplinary procedure and that the Respondent was similarly bound. The Appellant submitted that the process employed by the Respondent to terminate his employment was not in compliance with its own procedures and that any grievance which had been raised by the Appellant was not dealt with by the Respondent in accordance with its own procedures.

Mitigation, loss and redress

The Appellant submitted that he attempted to secure employment immediately following his dismissal. He submitted that he secured employment within eight weeks of his dismissal and that the rate of pay in the new employment was greater than the rate of pay enjoyed by the Appellant while in the employ of the Respondent.

Discussion and conclusions

The Court has earlier decided that the provisions of the Act do apply to the dismissal of the Appellant. The Court notes that the contract of employment issued to the Appellant set out that the Respondent’s grievance and disciplinary procedure applied to the Appellant in his employment. That procedure sets out that the disciplinary procedure is designed to ensure fair treatment for those whose job performance is below an acceptable level. In the within case the Respondent clearly submits that it had issues with the performance of the Appellant throughout the period of his employment.

The procedure of the Respondent for dealing with such matters commits to the principles of fair procedure and natural justice. A basic requirement of fair procedure is that when a procedure is set out in writing as being the applicable procedure in a particular circumstance, the published procedure is in fact the procedure followed when such a circumstance arises. The Respondent’s procedure advises that if a staff member continues to fail to achieve the required work standard a sequential process will be followed as necessary involving a verbal warning, a written warning, a final written warning, suspension/demotion/transfer and ultimately dismissal. The Court is satisfied that this procedure was not followed at all by the Respondent in respect of any performance issues arising in the view of the Respondent in the case of the Appellant.

Taking account of the above factors, the Court finds, having established that the expiry of his fixed term contract was not the only factor giving rise to the decision to dismiss, that the manner in which the decision was made to dismiss the Appellant was lacking in procedural fairness to which he was entitled. In those circumstances, while noting that the Respondent holds that the performance of the Appellant was unsatisfactory, the Court must conclude that, as a result of a failure to adhere to its own written procedures for dealing with such a circumstance, the dismissal of the Appellant was unfair.

The Court notes that the salary of the Appellant during his employment with the Respondent was €40,382 per annum which equates to a weekly wage of approximately €775.00. The Court also notes that the Appellant has submitted that he made efforts to mitigate the loss arising from his dismissal. The Court notes that the Appellant secured employment within eight weeks of his dismissal but has been provided with no evidence of the efforts made in that eight week period by the appellant to mitigate the loss suffered as a result of his dismissal.

Having regard to the foregoing the Court concludes that the appropriate redress in this case is compensation and the Court measures the appropriate compensation amount at €5,000.00.

Determination

The Appellant was unfairly dismissed by the Respondent. The Court orders the Respondent to pay to the Appellant compensation in the amount of €5,000.00.

The appeal, therefore, succeeds and the Adjudication Officer’s decision is accordingly set aside.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
JD______________________
11 January 2018Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.