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-00014744-001

03/10/2017

The complainant is a practising barrister and has a specialised degree in Intellectual Property Law. Following an approach by him to the respondent, on July 22nd 2015, he had a meeting with a course-co-ordinator who asked him to submit ideas for a course in his subject area. He sent an e mail to the course co-ordinator that day, and on August 21st, he was asked to prepare five lectures, to be delivered in November and December 2015. He delivered four lectures, but was paid for delivering five. The particular diploma was not included in the 2016 programme, but in February 2017, the complainant discovered that a very similar diploma was being offered in the 2017 schedule. He was not invited to deliver the lectures he had prepared, or any other lectures and he claims that he has been unfairly dismissd.

Section 2(1) of the Unfair Dismissals Act 1944-2014 (“the Act”) provides that it will not apply to:

“(a) an employee (other than a person referred to in section 4 of the Act) who is dismissed, who at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him…”

Section 4 addresses the issue of apprenticeships and is not relevant here. In the case under consideration, Mr Mallon argued that the complainant was not an employee of the respondent and that, if he had been, he was employed for less than one year. The complainant was asked to address the matter of his length of service and his entitlement to make a claim under the Unfair Dismissals Act.   He submitted a comprehensive paper to me on March 16th 2018. In response, on March 23rd, Mr Mallon submitted a paper on behalf of the respondent.

The Factual Context

The complainant submitted that the one-year qualification criteria set out in the Unfair Dismissals Act does not apply to him in the circumstances of his relationship with the respondent. He argues that his employment commenced on July 22nd 2015 when he had a meeting with the facility’s diploma course co-ordinator at which he was asked to provide ideas for a new course in his subject area. He said that this manager’s expectation was that he would “be retained on future iterations of the course in an acknowledgement of the level of work required to prepare completely new course material and assist the design / finalisation of the course itself.” He also argues that the extent to which he would be involved in the course was left open and pointed to the note at the end of the 2015-2016 course timetable which states: “*Please note that topics / speakers may be subject to change.”

Statutory Interpretation Regarding Fixed-term / Specific-purpose Contracts

In his submission of March 16th, the complainant proposed that a proper construction of the relevant provisions of the Unfair Dismissals Act is that the one-year continuity of service criteria does not apply to fixed-term contracts.   Setting out the definition of “dismissal” at section 1 of the Act, sub-section (c) addresses the expiration of a fixed-term or a specified-purpose contract.  

“Dismissal” means:

“the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract 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), the cesser of the purpose;”

In this regard, the complainant relies on the principle, “expression unius est exclusion alterius,” meaning that where one or more things of a class are expressly mentioned, others of the same class are excluded.   He argues that the intention of the legislature can be determined by the omission in section 1 of a reference to a minimum period of service regarding fixed-term or specified-purpose contracts. In his paper, the complainant asked me to interpret the 12-month service qualification “in light of the modern working environment, applied with the principle of proportionality in mind.”   He submitted that I can and should take account of industry standards regarding the provision of third level and post-qualification education and in particular, the “norm” as he describes it, for an employee / lecturer to be paid an hourly rate that takes account of the totality of work involved in the preparation and delivery of lectures. The complainant listed the work required in the preparation of lectures (preparing notes and slides) and in the follow-up afterwards (preparing exam questions and correcting exams), work carried out by part-time lecturers for no additional remuneration, which he contends is the “vast majority” of the work associated with being a lecturer.   He submits therefore that he commenced employment when he started to prepare lecture notes on July 22nd 2015. He said that a student on the 2015/2016 Diploma on the course that he lectured on who failed the July examination would have had access to him regarding questions about the content of his lectures at least up to and beyond August 2016, thereby satisfying the 12-month service requirement.

Concluding his arguments related to his eligibility under the Unfair Dismissals Act, the complainant made a number of observations about his profession and how it organises training, development and support for barristers attempting to raise their profile. I have noted these observations in my consideration of this preliminary issue.

In his paper dated March 23rd 2018, for the respondent, Mr Mallon submitted that the complainant’s argument that persons employed on fixed-term contracts do not have to have the requisite one year’s service as required by section 2(1)(a) of the Unfair Dismissals Act is erroneous. Mr Mallon said that no distinction is drawn in the section between fixed-term contracts and contracts of indefinite duration and “it is beyond doubt that the Act only applies to those with more than 12 months’ service, except in the special cases set out.   Fixed-term contracts are not referred to in those special cases.”

The respondent’s position is that the complainant does not have the requisite period of engagement with the institution to bring him within the scope of the Unfair Dismissals Act, even if he were to demonstrate that he was directly employed by them on a fixed-term contract.

Mr Mallon argued that at no point, was the complainant an employee of the respondent. Rather, he was engaged as an independent contractor for the specific purpose of delivering five lectures on the 2015 offering of a specific diploma course. The payment for “services rendered” was €210 per lecture hour, inclusive of preparation time.   The complainant was paid in full, although he did not deliver all five lectures. Two were delivered on the 7th of November 2015 and two were recorded in December. Mr Mallon submitted that this was the extent of the complainant’s engagement with the respondent as an independent contractor. He did not undertake any work for the respondent between December 2015 and his alleged date of dismissal on June 22nd 2017.

The complainant’s case on the one-year service qualification issue is based on two propositions:

First, he claims that he commenced employment on July 22nd 2015, when he had a meeting at which he was invited to prepare notes on ideas for content for five lectures. He claims that his employment ended in August 2016, when he could have been contacted by students who attended his lectures in November and December 2015 and who failed their exams. In this way, he argues that his employment extended from July 22nd 2015 to August 2016.

If I am to accept that a contract of employment commences on the day a meeting takes place to discuss a possible engagement, it must follow that every employee starts work on the day they are interviewed, which is bizarre. I note that the complainant said that he spent 150 hours preparing his lectures; however, his first day of employment was the day in November 2015 that he delivered his first lecture. With regard to an end date, there is no evidence that he was required to be available to students who might fail their summer exams and I find that his last day at work was in December, when he recorded the final two of the four lectures that he delivered. I have concluded therefore, that the complainant worked for the respondent for less than two months.

The complainant’s second proposition is that the definition of “dismissal” in the Unfair Dismissals Act, where it refers to the expiration of a fixed-term or specified-purpose contract, excludes any reference to the requirement to have one year of service and therefore, this requirement does not apply to fixed-term or specified-purpose contracts.   No case law has been referenced to support this premise. It is my view that this argument is not sustainable as the law could not have intended to confer an eligibility on fixed-term and specified-purpose contract-holders that does not apply to employees on permanent contracts with less than one year of service.

Section 2(1) of the Unfair Dismissals Act is very clear and even provides a useful margin note stating, “Exclusions.” The intention of the Act, apart from very specific circumstances, is to exclude an employee, “who, at the date of his dismissal had less than one year’s service with the employer who dismissed him.”

It is in the context of this legal framework, and not “the modern working environment” or the plight of part-time lecturers that I am required to reach a decision on this matter. While I understand the complainant’s disappointment and offence at not being invited back to lecture on a course about which he has specific expertise, his grievance cannot be addressed within the parameters of the Unfair Dismissals Act.

I have decided that he complainant does not have one year of service with the respondent to bring a complaint under the Unfair Dismissals Act. I find therefore that I have no jurisdiction to adjudicate on this complaint.

Length of service, jurisdiction