Complainant

Respondent

Anonymised Parties

{An employee}

{A Technology Company}

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00014249-001

25/09/2017

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

CA-00014249-002

25/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00014249-004

25/09/2017

The Complainant is a customer service executive who was employed with the company on 20th June 2016. She was dismissed on 16 June 2017.

The Complainant was employed by the company on a 6 month’s fixed-term contract commencing on 20th June 2016 which expired on 19th December 2016. The Complainant’s representatives applied to rectify the name of the company due to a clerical error on the complaint form.

The Complainant was not given any further contract of employment after December 2016 and understood that she was “made permanent” and employed on a contract of indefinite duration thereafter on the same terms.

On 15th June 2017 the Complainant was notified of a meeting the following day to discuss her current level of performance. She was informed by letter that the meeting could lead to the termination of her contract and she was entitled to bring a work colleague or trade union representative to the meeting.

On 16th June 2017 the Complainant says the company wrote to her purporting to terminate her employment by letter that day on the basis that her fixed-term contract had expired and was not being renewed. The letter of dismissal does not set out any performance-related reasons. In addition, the letter did not refer to the 1 week’s minimum notice due to the Complainant on dismissal under the Minimum Notice and Terms of Employment Acts, 1973-2005. The Complainant relies on section 1 of the Unfair Dismissals Acts 1977-2015, and says the correct date of her dismissal is 23rd June 2017. She claims she has 12 month’s continuous service with the company and is entitled to pursue an unfair dismissal claim. S1 of the Unfair Dismissals Acts 1977-2015 provides that in ascertaining the date of dismissal of an employee, the employee is entitled to the benefit of the applicable notice period due under the Minimum Notice and Terms of Employment Act 1973 which is 1 week.

The Respondent contends that the Complainant was employed on a series of rolling one-month fixed-term contracts following expiry of her 6 month’s contract on 19 December 2016, the last of which was terminated by letter of 16th June 2017. The Complainant says this is misconceived, cynical and disingenuous. No written statements have ever been produced evidencing the alleged rolling one-month contracts and this is a breach of an employer’s obligation to furnish details of the expected duration of a contract or if the contract is for a fixed-term the date on which the contract expires under S 3(1) f of the Terms of Employment (Information) Acts, 1994-2014.

The Complainant attended meetings with the Respondent but disputes that her dismissal relates to her performance as the reason given was her dismissal was due to expiry of the contract. The meeting in March of 2017 was not part of any review process. The letter sent to her was a pro forma letter and did not specify any performance issues. She was told she was either meeting her targets or just below this but no particular issues were identified. There was an investigation into the dropped calls but there was no finding against her and this may have been due to the equipment and phones. She was not in a performance review process at any time. A week prior to dismissal, she was put in a high performance team.

The Respondent says that this complaint should not be brought to the WRC, that the Complainant was employed at all times under a fixed-term contract of employment which came to an end on 16 June 2017.

The Respondent consents to the change of name of the company to the correct entity. The Complainant’s fixed-term contract commenced on 20th June 2017 for a period of 6 months and it was allowed to roll over for another 6 months on a month by month basis after 19 December 2016, and was finally brought to its natural end on 16th June 2017.

The statement of terms and conditions of employment issued to the Complainant and signed by her expressly excluded the provisions of the Unfair Dismissals Acts 1977-2015 as follows:

“The provisions of the Unfair Dismissals Acts 1997-2007, will not apply to the termination of this contract where such termination is by reason of the expiry of the term.”

The Respondent says they do not have any case to answer under the Unfair Dismissals Acts as fixed-term workers are excluded from the protection of the Unfair Dismissals Acts by virtue of the fact that the contract has come to an end (either by expiry of the term or the arrival of the specific purpose event) provided 3 conditions are met:

1 The contract is in writing

2 The contract states that the Unfair Dismissals Acts will not apply to a dismissal which occurs only as a result of the end of the contract arriving

3 The contract was signed by both employee and employer.

The Respondent says that the Complainant signed the contract, accepted all the terms and conditions and is precluded from pursuing an unfair dismissal claim.

On the expiry of her fixed-term contract, the Respondent say the Complainant was verbally informed by her manager that her contract would be rolled over on a month by month basis to allow her to make the necessary performance improvements. When the Complainant asked why her contract was not being renewed or she was not being made permanent, she was informed this was due to performance grounds. The performance statistics showed that she was behind targets. Her performance was dipping and she was being coached by her manager from December 2016 onwards.

On 27 March 2017 the company said the Complainant was informed her performance was under review and unless she met the required standards, she could be dismissed. She attended the meeting with her union representative.

The Complainant was requested to attend a meeting on 15th June 2017 by letter which informed her performance was under review and unless she met the required standards, she could be dismissed. She attended the meeting with her union representative. There is a set standard for calls. The Respondent says there were repeated drops of calls and this was showing up on the performance metrics, and her performance was below this. The performance discussions provided the Complainant with objective grounds for non-renewal of her fixed-term contract and have no bearing on this case.

The Respondent told the Complainant that she was paid in lieu of notice and this claim has no merit.

The Complainant was employed on a fixed-term contract from 20th June 2016 to 19th December 2016 which is signed by the Complainant and the Respondent. The fixed-term contract provides at clause 19 that the contract can be terminated by the employer on notice to the employee based on the employee’s length of service in accordance with the Minimum Notice and Terms of Employment Act 1973-2001. The employer is required to give 1 week’s notice to the employee after 13 weeks of continuous service up to year 2 of employment. The company has the right to pay the employee in lieu of a notice period.

Section 1 (1)b of the Unfair Dismissals Acts 1977-2015 specifies the ‘date of dismissal” means

(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates-

(i)                  The earliest date that would be in compliance with the provisions of the contract of employment

(ii)                The earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act 1973

Notice of dismissal was given to the Complainant on 16th June 2017, and both the Complainant’s contract of employment and the Minimum Notice and Terms of Employment Acts 1973-2005 provide for 1 week’s notice to be given by an employer to an employee where the employee has service in excess of 13 weeks but under 2 years. The employer subsequently paid the employee 1 week’s pay in lieu of notice, which terminates the employment contract.

The date of dismissal of the Complainant for the purposes of the Unfair Dismissals Acts 1977-2015 must be construed in accordance with that Act. The Act provides that where 1 week’s notice was given on 16th June 2017, (which is defined as 7 consecutive days under the Minimum Notice and Terms of Employment Act 1973-2005) the date of dismissal for the purposes of a complaint under the Act is the date that 1 week’s notice would have expired on 23 June 2017. Thus the Complainant has 12 month’s continuous service under the Unfair Dismissals Acts and is entitled to make a complaint under the Acts.

The fact of the dismissal is not in dispute and the Respondent carries the onus of showing that having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 2 (2) (b) of the Unfair Dismissals Acts provides that the protection of the Acts does not apply when a dismissal arises from the expiry of a contract’s term or the specified purpose is completed.

Section 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 Complainant rejects this and says she is unaware why she was dismissed as her contract had long expired, and she was not in a performance review process.

The Complainant was originally employed on a fixed-term contract dated 9th June 2016 for a period of 6 months and her employment commenced on 20th June 2016. The contract terms specified that unless terminated in accordance with its notice terms it will conclude on 19th December 2016. The terms state;

“The provisions of the Unfair Dismissals Acts 1977-2007 will not apply to the termination of this contract where such termination is by reason only of the expiry of the Term.”

The fixed-term contract was signed by both the Complainant and Respondent. Following expiry of the contract on 19 December 2016 the Complainant’s employment continued however, the terms of her employment were not set out in writing. The Respondent contends that the fixed-term contract was extended after 19th December 2016 on a month by month basis.

The Respondent seeks to rely on Section 2 (2) (b) of the Unfair Dismissals Acts which allows an employee who wishes to accept a temporary employment arrangement from an employer to waive her rights to the protection of the Unfair Dismissals Acts. As this is a valuable employment protection right it is essential that the agreement states in writing what is being waived and the parties through their signature indicate their agreement to this, and the conditions are fully and completely satisfied. The contract had expired, no contract was in place complying with these conditions which must be strictly construed. Therefore the Respondent must show substantial grounds justifying the dismissal.

The Complainant’s signed contract of employment states:

“Your performance will be reviewed from time to time..”…”.. if the company requires you to improve and/ or make any adjustments to your performance, you will be notified of the company’s expectations..” “Should you fail to make adequate improvements, the company reserves the right to take all additional steps including termination of employment. The steps involved in this performance review process shall be applied fairly and reasonably.”

The Respondent said the Complainant was informed from December 2016 onwards about her poor performance, and there were coaching conversations and documents given. On 24 March 2016 the Complainant was called to a formal meeting to discuss her current level of performance with her Union. The Complainant was notified in the letter that the possible outcome of the meeting could lead to termination of her contract. There are set standards for calls and there were repeated drops of calls and these were outlined to the Complainant. The Complainant’s version of events differs.

The Manager who was coaching the Complainant has since left the business. No evidence was given by the Respondent of the performance management procedure used nor was the Complainant disciplined due to poor performance.

The Complainant denies that her performance was raised with her prior to receiving a letter of 15th June 2017 calling her to a formal meeting to discuss her performance. There was a meeting in March when she says she was either meeting her targets or just below but no particular issues were identified. There were problems with older equipment in dropping calls. No adverse finding was made against her in March. The 15th June 2017 letter warns that a possible outcome of the meeting could lead to termination of her employment contract however, the Complainant was informed the reason for her dismissal was due to expiry of her fixed-term contract and does not refer to poor performance whatsoever as grounds for dismissal.

Substantial grounds have not been shown by the Respondent to justify the dismissal which is substantively unfair. The most suitable remedy in the circumstances is compensation.

The Complainant’s weekly salary is 392.25 euro gross. She has financial losses from 24 June 2017 to the date of hearing of approximately 7 month’s losses. In light of the evidence given of mitigation of financial loss and that the Complainant is attending a training course, it is just and equitable that the Complainant is awarded 12 weeks financial losses of 4,707.00 euro gross.

The Complainant was unfairly dismissed and is awarded 4,707.00 euro gross financial loss.

Date of dismissal, expiry of fixed-term contract, waiver of rights under Unfair Dismissal Acts

The Complainant is a customer service executive who was employed with the company on 20th June 2016. She was dismissed on 16th June 2017.

The Complainant received no notice of dismissal and no pay during the period. This was paid in August 2017.

The Respondent accepts there was a delay in paying the requisite notice but all payments due were paid.

The Complainant withdraws this complaint.

The complaint is withdrawn.

The Complainant is a customer service executive who was employed with the company on 20th June 2016. She was dismissed on 16th June 2017.

The Complainant was not notified in writing of a change to her terms of employment.

The Complainant’s contract expired after 6 month’s on 19 December 2016. The employer failed to furnish her with a new contract or an amended one.

The Respondent says that the Complainant had a fixed-term contract which would have expired on 19th December 2016, but the employer allowed this to be rolled over on a monthly basis until 16 June 2017. Clause 24 of the contract provides for changes and the Complainant was consulted in relation to her contract extension.

The Complainant’s contract of employment expired on 19th December 2016. Pursuant to S5 of the Terms of Employment (Information) Act 1994 whenever a change is made in the statement of employment particulars furnished under the Act, the employer shall notify the employee in writing of the nature and date of the change as soon as maybe thereafter but no later than 1 month after the change takes effect.

The Respondent was obliged to furnish details of the changes in writing to the Complainant by 18th January 2017 and then the Complainant had 6 months in which to make a complaint of breach of the Act. The Complainant’s complaint of the breach was not made until 25th September 2017 which is outside the statutory time-limit of 6 months under S41 of the Workplace Relations Act 2015.

I find the Complainant’s complaint is statute-barred.