UDD1828

• �Work inside the terms of her job description
  �Communicate fully and constructively with all staff
  �Sign her contract of employment on 31^stMarch 2016.

• “Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct.

• • i.The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.
    ii.Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.
    iii.The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.
    iv.The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.
    v.The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.
  
  Put very simply, principles of natural justice must be unequivocally applied.”

Ms Kealin Ireland, Ireland Human Resources, on behalf of the Respondent denied that the Complainant was unfairly dismissed. She contended that the Complainant’s fixed term contract had come to an end on 31^stMarch 2016 and her employment was accordingly terminated by effluxion of time.

Ms Ireland submitted that no stage did the Complainant make a protected disclosure and accordingly she was not penalised for doing so. Ms Ireland said that the Respondent had made every effort to address the Complainant’s grievances which were addressed to finality. The Complainant however, rejected all of these interventions and efforts and showed scant regard for her employment situation.

Ms Ireland said that the Complainant had been on a fixed term contract since commencing employment in 2013 and was on a further fixed-term contract which commenced on 1^stJuly 2015 and with an ending date of 31st December 2015. However, this contract was extended on a monthly basis to 31^stMarch 2016.

Ms Ireland said that the Complainant raised several queries in relation to her job description and contract; annual leave entitlement etc which the Respondent subsequently addressed. Furthermore, the Complainant disagreed with critical elements of her job description, specifically in relation to working on a project with Traveller children under ten years of age. She made allegations of financial irregularities, objected to the salary offered and would not sign her contract.

The Complainant raised a formal complaint in December 2015 and from that date onwards, there was significant interaction between the Complainant and management. In order to give sufficient time to address her grievances, her fixed-term contract was extended on three separate occasions. Ms Ireland said that in an attempt to clarify and separate the main grievances and potentially to identify a solution, she, as the Respondent’s HR Consultant meet with the Complainant and her trade union official. The Complainant was also offered the services of a professional Mediator, but declined the offer.

Ms Ireland said that the Complainant was vociferous in her allegations and was reluctant to listen to any alternative view or any evidence that contradicted her own. A thorough investigation into her allegations found no evidence of any wrongdoing by the Respondent and there was no evidence of breach of child protection procedures or Garda Vetting requirements. There was no evidence whatever of financial irregularities and the Complainant was assured of these points at every juncture. Ms Ireland said that despite this, the Complainant continued her allegations and did not respond to management's requests that she engage in mediation or developmental intervention.

Management invited the Complainant to refer her issues to the WRC and assured her that the Respondent would participate in whatever process ensued. The Complainant did not respond to any of these requests and did not refer her grievances to the WRC.

Ms Ireland said that throughout 2016, the Complainant’s grievances remained but she refused to engage in any resolution process; refused to accept management's assurances on any matter she had raised; refused to sign her contract; she would not engage with colleagues and she refused to carry out critical elements of her job description. Eventually, management and the Board came to a decision that it could not continue. The Chairperson wrote to the Complainant on 23^rdFebruary 2016 and advised her that her contract was being renewed for one final time, to expire on 31^stMarch 2016.
The letter stated clearly that if she did not:-

• • work inside the terms of her job description
  • communicate fully and constructively with all staff members, and
  • sign her contract of employment

Ms Frances O’Rourke said that she dealt with the Complainant’s grievances and that every effort was made to address her concerns exhaustively. She addressed the issue of the Complainant’s pay and the questions she raised about funding. However, Ms O’Rourke said that the Complainant misinterpreted the explanation given concerning the allocation of funding which was used not just to pay employees but to cover overheads also. Ms O’Rourke said that the HR Consultant was brought in to assist in resolving the Complainant’s grievances, which was in line with the Respondent’s Grievance Policy.

Ms O’Rourke said that when the Complainant raised child protection issues with her in January 2015, a Board meeting was set up and a Child Protection Committee was established and informed the complainant that if she had any further concerns on this matter that she should write to the Director. Ms O’Rourke submitted that in her opinion the actions of the Respondent had comprehensively dealt with the issues raised.

When asked about the protected disclosures made in the Complainant’s formal grievance letter to her dated 11^thDecember 2015, she said that she did not appreciate that they were “protected disclosures” and said that she was not aware that the Complainant had brought these issues to the attention of the other organisations mentioned above.

Evidence of Ms Geraldine Dunne, Director

Ms Dunne said that the fixed-term contract issued to the Complainant on 1^stJuly 2015 stated in error that it commenced on 1^stJuly 2013. She said that the Complainant had previously had a fixed-term contract from 1^stJuly 2013 until the end of April 2014, and due to internal administrative restructuring, a new contract was not drawn up until 1^stJuly 2015. She explained that funding application must be made each year to its funding organisation. Normally its service level arrangements are commenced in December each year and agreements in place by the end of the year.

Ms Dunne was questioned by the Court as to why a letter terminating her employment was sent to the Complainant on 31^stMarch 2016, when the Complainant had signed her contract (albeit under duress) on that date. Ms Dunne said that as the Complainant did not comply with the stipulations given to her by the Chairperson it was decided to terminate her employment and by the time the termination letter was sent out to her it had not received the Complainant’s signed contract.

Ms Dunne was asked why that contract was never signed by her on behalf of the Respondent, she replied that it was because the Complainant’s employment had been terminated by the time she received the Complainant’s signed contract.

The Court queried the Complainant’s employment status with Ms Dunne, she replied that she had been on a fixed-term contract which was due to expire on 31^stDecember 2015, however it was rolled over to allow her grievances to be resolved.

The Court put the same questions to Ms Dunne regarding her knowledge of the Complainant’s “protected disclosures” made in the formal grievance letter to Ms O’Rourke dated 11^thDecember 2015. Ms Dunne said that she did not appreciate that they were “protected disclosures” and also said that she was not aware that the Complainant had brought these issues to the attention of the other organisations mentioned above.

Dismissal as a fact

The fact of 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.

The Law

The Respondent in this case submitted that the Complainant’s dismissal arose on the expiry of the term of her contract and her contract was not renewed. The Respondent submitted in evidence its letter to SIPTU dated 15^thApril 2016 – which letter was provided in response to the Union’s request in accordance with Section 14(4) of the Unfair Dismissals Acts – which set out the grounds for dismissal as follows:

• “Dear Mr Cullen

  In relation to your letter of April 05 concerning the above-named, I wish to advise that Ms O’Keeffe’s employment with Southside Travellers Action Group came to an end when her contract of employment ended.”

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 the Respondent’s position in this regard and alleges that she was dismissed as a reaction to her making various protected disclosures from 2014 onwards, which she formally confirmed in writing by letter dated 11^thDecember 2015 addressed to Chairperson, Frances O’Rourke.

Section 6(2) of the Unfair Dismissals states, in relevant part:

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:
(ba) the employee having made a protected disclosure,

Protected disclosures are defined in Section 5 of the Protected Disclosures Act 2014, as follows:

• 5.(1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) andsections 17and18, a disclosure of relevant information (whether before or after thedate of the passing of this Act) made by a worker in the manner specified insection 6,7,8,9or10.

  (2) For the purposes of this Act information is “relevant information” if—

  (a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

  (b) it came to the attention of the worker in connection with the worker’s employment.

  (3) The following matters are relevant wrongdoings for the purposes of this Act—

  (a) that an offence has been, is being or is likely to be committed,

  (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

  (c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

  (d) that the health or safety of any individual has been, is being or is likely to be endangered,

  (e) that the environment has been, is being or is likely to be damaged,

  (f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

  (g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or

  (h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.

  (4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.

  (5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

  (6) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice.

  (7) The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.

  (8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

Having regard to the evidence, including the Complainant’s letter dated 11^thDecember 2015, the Court is satisfied that the Complainant made various protected disclosures in the period from September 2014 up to December 2015 when she formally confirmed matters in writing.

Having regard to the definitions contained in Section 5 of the Protected Disclosures Act, the Court is satisfied that the matters raised by the Complainant in respect of the mini-bus, health & safety concerns, child protection/Garda vetting concerns and programme funding expenditure concerns were protected disclosures.

In order for the Complainant’s case that she was unfairly dismissed for having made protected disclosures to succeed the Court must be satisfied that the Complainant’s employment was terminated by the Respondent in reaction to or in retaliation for her having made the disclosures aforesaid.

The Court has carefully considered all of the evidence in this regard and is not convinced that the termination of the Complainant’s employment arose as a result of her having made protected disclosures.

In arriving at this decision, the Court has had regard to; the substantial time period between disclosures being made, the first one in September 2014 and the termination of the Complainant’s employment in March 2016, some eighteen months later; the fact that Respondent was unaware that the Complainant had made disclosures to three other external agencies and; the fact that the evidence of the Respondent was that they did not appreciate that any protected disclosures had been made.

With regard to the grounds for termination put forward by the employer, that the Complainant’s employment ended when her fixed-term contract expired, the Court notes the following:

• 
  •The Complainant was originally employed on a fixed-term contract of employment which began on 1^stJuly 2013. That contract ended on 1^stJuly 2014.

  •The Complainant’s employment continued thereafter unbroken, however, the terms of her continued employment were not reduced to writing.

  •The Complainant was presented with a written fixed-term contract by the Respondent in July 2015. The contract had a commencement date of 1^stJuly 2015 and contained a clause which provided that the employment would expire on 31^stDecember 2015, it also stated that“the provisions of the Unfair Dismissals Acts 1977 to 2001, will not apply to the termination of this contract where such termination is by reason of the expiry of this fixed term”.

  •The Complainant disputed a number of its terms, including annual leave and sick leave entitlements, and did not sign the contract when it was issued to her. Neither did the Respondent sign the contract at the time it was issued. Accordingly, the contract was not signed by either party at the time of its purported commencement.

  •The Respondent contended that this fixed-term contract was extended after 31^stDecember 2015 on a month by month basis.

• 
  a)The contract must be in writing;

  b)The contract must be signed by or on behalf of the employer;

  c)The contract must be signed by the employee;

  d)The contract must provide that the Unfair Dismissals Act 1977 shall not apply to a dismissal consisting only of the expiry of the fixed-term or the cesser of the specified purpose.

Section 2(2)(b) essentially allows an employee who wishes to accept a temporary employment arrangement from an employer to waive his or her rights to protection under the Unfair Dismissals Acts. In a situation where an employee is giving up what would otherwise be very valuable employment protection rights it is essential that the agreement clearly stipulates in writing what is being waived and that the parties indicate, through their signature, express agreement to it. These conditions must therefore be fully and completely satisfied.

It is clear in this case that these conditions were not so satisfied. It follows that the exclusion which permits the non-application of the Unfair Dismissals Acts did not apply to the termination of the Complainant’s employment and there must therefore be substantial grounds justifying the dismissal.

In seeking to rely on the exclusion contained in Section 2(2)(b) the employer has put forward no other substantial grounds justifying the termination of the Complainant’s employment. That being the case, the Court finds that the Complainant was unfairly dismissed on 31^stMarch 2016.

Redress

The preferred form of redress indicated by both parties in this case is that of compensation.

The Court is satisfied that neither reinstatement nor re-engagement are appropriate remedies in all the circumstances of this case. Accordingly, the Court decides that compensation is the appropriate form of redress.

The Complainant told the Court that she obtained new employment on a 2-day a week part-time basis from 16^thNovember 2016 at a rate of €500.00 gross for the two days. The Complainant further told the Court that she has not sought any other employment since securing that employment following her dismissal.

The period of loss therefore amounts to some seven and a half months.

Having regard to the Complainant’s efforts to mitigate her loss, the Court measures the compensation appropriate in this case as being €17,500.00.

Decision

The Complainant was unfairly dismissed. The Respondent is ordered to pay the Complainant compensation in the amount of €17,500.00 within six weeks of the date of this decision.

The Adjudication Officer’s Decision is set aside.

The Court so decides.

Signed on behalf of the Labour Court



Caroline Jenkinson
18 May 2018______________________
MNDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.