ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00009644

Parties:

Complaint(s):

Date of Adjudication Hearing: 16/11/2017

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

Summary of Complainant’s Case:

The Civil Public and Services Union are making a complaint under the Unfair Dismissals Acts on behalf of The Complainant who was a fixed term worker.

Section 2(2) b of the Unfair Dismissals Acts provides that dismissal occurring because of the expiry of a subsequent employment contract is subject to the Unfair Dismissals Act if ‘partly for or connected with the purpose of avoidance of liability’.

The union claims that The Complainant was in continuous employment with the Respondent from the 22nd of February 2012 until and 30th of June, 2017 at which time she was unfairly selected for redundancy and dismissed from employment.

The union further claims that the unfair selection of the Complainant for redundancy was connected with the avoidance of their liability under the Fixed Term Workers Act and there are no substantial grounds justifying the dismissal.

The Complainant was a fixed term worker employed with the Respondent performing the full range of Clerical Officer duties.

The Complainant’s contract of employment commenced on the 22nd of February with no end date

22/2/12                -              no end date

Apart from her contract of employment, the only other communication the Complainant received from her employer was in correspondence dated the 31st May 2017 advising that they were terminating her employment with effect from the 30th of June, 2017.

Following the Complainants dismissal she received correspondence from her employer dated the 19th of July advising her that she was entitled to a statutory redundancy payment which was lodged into her account. She did not apply for a redundancy payment.

The union claims the expiration of a contract of employment for a fixed term without it being renewed under the same contract, or, in the case for a specified purpose and the cesser of that purpose can amount to dismissal and in accordance with the legislation the burden of proof is on the employer to prove that there are substantial grounds justifying the dismissal.

Notwithstanding that, the union claims that the work the Complainant was doing is on-going in nature, the nature of the job remains the same, the job continues to exist and the actions of the employer implies that the Complainant was unfairly selected for redundancy and was unfairly dismissed from employment on the 30th of June, 2017.

In the written statement to the WRC on the 4th of August 2017 the Respondent have proposed the Complainant was on a specified purpose contract which implies that her contract would be terminated at the end of the occurrence of a specific event or cessation of a specific purpose. The Complainant is completely unaware of what specific event has ended or what specific purpose has ended.

The objective grounds being relied upon were expressed as

                “for the purpose of covering a permanent staff member’s absence”

This provision amounts, in effect, to a statement of the purpose of the contract and implies that the employment will come to an end when a staff member returns to work. However, that staff member has been out for at least more than 5 years (we don’t know when his/her sick leave absence commenced so it could be more than 5 years), has not been named and it was not made known to The Complainant who that staff member was and there was no communication with her on when, if ever, that staff member would return to work.

The Complainant was left completely in the dark as to the duration of her temporary contract and its likely end date.

The statement goes on to advise that the permanent staff member resumed duty on the 10th of May 2017, yet The Complainant continued performing her normal full range of clerical officer duties until the 30th of June, 2017.

The union has no way of tracking or monitoring what absence the Complainant was matched to which makes it easier for the employer to abuse the contract especially given the fact that they appear to reserve their right to engage in a practice where they take on one temporary Clerical Officer to cover a number of absences.

We further contend that entitlement to redundancy suggests that the work is no longer being carried out in the workplace. The Complainant was a fully trained integrated member of staff in the local office which clearly demonstrates the union’s claim that the work has not ceased or diminished nor is it expected to cease or diminish and substantiates the argument that the Complainant was dismissed from employment and that the work is on-going in nature.

We respectfully suggest that the question before the Adjudicator is whether the job (work) performed by the Complainant was the same as that position which she replaced. If the job (work) was different and employment came to an end, then there would be a level of acceptance that the job (work) was extinguished (no longer existed) and there would be a need for redundancy but this is not what happened in this case.

The union also claims that consultation is a statutory requirement where the employee is challenging the genuineness of the selection for redundancy under the Unfair Dismissals Acts, yet no consultation process was afforded to the Complainant and no consultation or information process was afforded to her representatives. No procedures were implemented or applied by the employer.

The calculations of loss at this time are provided and note we believe we have demonstrated that there are no objective grounds justifying the Complainant’s dismissal from employment.

Summary of Respondent’s Case:

The Complainant has taken a complaint to the WRC, dated 20 July 2017 under Section 8 of the Unfair Dismissal Act 1977.

The position of the Department in relation to this complaint was outlined in our written statement to the WRC dated 4th August 2017.

Temporary recruitment for all Government Departments is conducted by the Public Appointments Service (PAS). Prospective temporary clerical officers (TCOs) apply to PAS for inclusion on the current years TCO panel as part of an annual competitive campaign. Applicants are allowed to choose one county for consideration for assignment and can then be assigned to any Government Department within that chosen county.

The Complainant applied to PAS and was successfully placed on the TCO Panel. Her chosen location was County X. She was assigned as a temporary clerical officer (TCO) in the Department from 22 February 2012.

The Complainant was assigned in order to temporarily cover the absence of a permanent staff member, while he was suspended pending a disciplinary process.

This was the objective reason for the temporary contract and is stated in the contract of employment. A copy of the contract of Employment that was offered and accepted by The Complainant.  The purpose for the contract of employment was stated as follows:

“The appointment will commence from 22 February 2012 and will be for the purpose of covering a permanent staff member’s absence”.

The specific nature of this absence was the suspension of a permanent officer and the contract offered was to temporarily cover their position while the Civil Service Disciplinary Code was invoked and applied to this officer. For data protection reasons we never include any personal details of the officer who is absent within the contract of a TCO. However a digital record is and was maintained by HR Division and the position in relation to this absence was reviewed regularly to ensure the objective reason remained.

When an employee is dismissed at the end of the specified purpose contract the Unfair Dismissals Legislation applies, unless the employer has availed of the provision to exclude the operation of the legislation. The three conditions to be met in order to rely on the exclusion clause are:

• The contract must be in writing and must set out the specific duration of the fixed-term contract or, in the case of a specified-purpose contract, the object of the contract.
• The contract must be signed by both the employee and the employer
• The contract must contain a specific clause stating that the Unfair Dismissals Acts will not apply to the expiry of the term of the contract

All three conditions are met in this case.

Section 2 (2) (b) of the Unfair Dismissals Acts states:   This Act shall not apply in relation to—

(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’s contract of employment included an exclusion clause that advised that the Unfair dismissals Act 1977-2005 will not apply to the termination of the employment by reason only of the expiry of the fixed term (or in this case purpose) contract without it being renewed. The permanent staff member resumed duty on 10th May 2017 following a lengthy absence. Therefore the objective reason for this temporary contract ceased with the resumption to work of the permanent officer.

The Complainant received notice on 31st May 2017 that her temporary contract would terminate on Friday 30th June 2017.

It is accepted that the disciplinary process for the suspended officer took an extended period of time from the start to the conclusion of the process. However, this is the nature of such processes. A copy of Circular 14/2006 in relation to the Disciplinary code that was applied to the disciplinary process conducted in this case was supplied.

In line with employment law, and as she had been employed by this Department for over 2 years at the termination of her contract, The Complainant was entitled to a statutory redundancy payment amounting to €6618.05 which issued to her shortly after the termination of her temporary contract. A copy of the letter that issued at that time including the calculation for this payment is attached

Decision:

Section 8 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.

In this case evidence regarding why the Complainant was employed and why her employment ceased (unrelated to the Complainant) emerged that was previously unaware to some of the participants due to its confidential nature. The Complainant was hired to provide cover for an employee who was suspended and undergoing a very long and exhaustive investigation process.

The Complainants employment ceased when the suspended person returned to work and the specific purpose in the Complainants contract had ceased. In a separate decision the Complainants claim for a CID was decided that it was not well founded by the Adjudicator on stated grounds. This claim for unfair dismissal was based on the following points;

That the Complainant was replacing someone on sick leave and this was established at the Hearing not to be the case.

That the Respondent was trying to avoid liability for a dismissal claim and this was also not established as the Complainants claim for a CID was not proven and the Respondent paid statutory redundancy to the Complainant when the permanent employee return to work.

That the Respondent applied an unfair selection policy for the redundancy and this does not have a relevance to the claim as there was no collective redundancy or redundancy of a permanent member of staff which should have also been considered for termination in the specific circumstance of this case. The Complainants employment ceased on the expiry of a specific purpose fixed term contract and therefore no selection process involving other staff was required to be completed by the Respondent.

That there was ongoing work for the Complainant and this situation is true but the return of the permanent member of staff after suspension would consume that work load.

The Respondent contained a clause in the Complainants contract of employment included an exclusion clause that advised that the Unfair Dismissals Act 1977-2005 will not apply to the termination of the employment by reason only of the expiry of the fixed term (or in this case purpose) contract without it being renewed. The suspended permanent staff member resumed duty on 10th May 2017 following a lengthy absence. This meant that the specific purpose for which the Complainant was hired ended and as a result her dismissal being excluded from being a claim under the Unfair Dismissal Act was met.

Overall, based on all the above there were substantial grounds and justifiable cause under Section 2.2 and 6.1 of the Unfair Dismissals Act for the Respondent to terminate the Complainants employment and the claim fails accordingly.

Dated:   22 March, 2018.

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Unfair Dismissal