Act

Complaint Reference No.

Date of Receipt

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

CA-00017253-001

04/02/2018

The complainant was employed on a number of fixed term contracts commencing on the 3rd March 2014, and he was transferred under the Transfer of Undertakings Regulations to the respondent’s company on the 16th June 2017. His employment was terminated on the 21st November 2017. He is claiming that he was unfairly dismissed. The respondent submitted that the fixed term contract came to an end and it was not renewed.

The complainant said that he was employed on a series of fixed term contracts and he had never to worry about renewal until this occasion. Several issues arose about hours of work, conditions of employment, health and safety and wage rates which needed clarification. He decided to draft a petition to management requesting a meeting to address the issues. He asked workers if they wished to sign it and about 32 did so.   The General Manager found out about the petition and started an investigation in to the matter and the complainant alleges he threatened to dismiss anyone who did not remove their name from the list. Some of the workers removed their signatures. His wife who worked in HR asked the HR manager about setting up a meeting but it did not happen. The complainant then emailed HR manager about setting up a meeting but he did not get a reply.

On 7th August 2017 he suffered an injury to his toe at work and he was on sick leave for a number of days. On the 17th of August the company issued letters to all the employees about the renewal of their contracts and shortly after this letter 4 operatives who had signed the petition were let go.

On 7th September 2017 the complainant went on sick leave again with his toe injury and submitted weekly medical certificates and remained on sick leave until 4th January 2018. He said that after working a total of 3 years and 9 months on continuous temporary contracts ranging from 1 month to a year his employment was terminated. He got a letter from the respondent, dated the 23rd November 2017, telling him that his fixed term contract which expired on the 21st November would not be renewed.

The complainant said that there was no shortage of work and there were 10 general operatives working double shifts. After he was dismissed the General Manager asked work colleagues if they could refer new staff for vacant positions. The complainant submits that he was unfairly dismissed.

The respondent is a recycling and waste collection company and the complainant worked as a general operative. In June 2017, the respondent took over another waste collection company under TUPE and all the employees transferred across including the complainant. All the general operatives and drivers were on fixed term contracts. The respondent said that a high percentage of the fixed term contracts were due to expire at the same time. The company wrote to all the employees on the 17th August 2017 telling them that they were reviewing the contracts and they intended renewing some of them before the expiry dates and they would be speaking to the employees on a one to one basis advising them about the renewal process. A business decision was made at that time not to renew a number of contracts. The company decided not to renew 4 employees’ contracts. A selection criterion was applied based on performance and attendance.

In August 2017 the complainant had an incident at work where he hurt his toe. He was on sick leave for 4 days and returned to work on the 15th of August until the 18th of August and then went on annual leave until 1st September 2017. The complainant returned to work on the 4th of September 2017 and in the afternoon, he reported that his toe was sore and he needed to attend the company GP. He attended the GP the following day and he was prescribed medication and advised to take 2 days off work. The complainant did not return to work and submitted medical certificates from his own GP. He was referred to the company doctor on the 11th October 2017 and he was advised to have an MRI as the GP could not determine the injury. He further advised that if there was no injury identified there was no reason he could not go back to work.

There was a difficulty in arranging the MRI scan as the complainant provided an incorrect telephone number to the GP.   The correct number was provided to the clinic but the company did not get any report on the outcome of the MRI and the complainant continued to send in medical certificates.

The complainant’s fixed term contract was due to expire on the 21st of November 2017 and he was informed by letter dated the 23rd of November that his contract was not being renewed. The respondent said that they looked at the volume of staff and the business operational requirements and decided it was necessary to reduce the number of operatives and this was the reason the contract was not renewed. The respondent accepted that the complainant was the only employee who did not have his contract renewed at that stage.

It was denied that the dismissal had anything to do with issues re working conditions or hours of work, the complainant had raised with the respondent or with the previous company.   The respondent accepted that they were recruiting general operatives in January 2018. A number of employees resigned and the company secured a new contract in January and it was necessary to recruit.

The respondent submitted that the complainant’s contract was not renewed because it was necessary to reduce staff for business reasons. The complainant submitted that there was plenty of work at the time and some staff were doing double shifts and the company was advertising vacancies. He believes his dismissal was connected to issues he wanted to raise with management about conditions of employment.

I note that the respondent wrote to the complainant on the 23rd of November stating that his fixed term contract had expired on the 21st of November 2017 as per his contract of employment and it was not being extended or renewed.

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

"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."

Section 13 provides:

“A provision in an agreement (whether a contract of employment or not and

whether made before or after the commencement of this Act) shall be void in so far as it purports to exclude or limit the application of, or is inconsistent with, any provision of this Act.”

Therefore, the matter I must consider is whether the UD Act applies to the dismissal.

I note that the document titled Temporary (Fixed Term) Statement of Terms and Conditions of Employment which the respondent relied on to dismiss the complainant was signed by the respondent on the 18th of November 2016 and signed by the complainant on the 9th March 2017. This document stated at paragraph 6 “commencement date: These terms and conditions of employment will be effective from 21/11/2016. Your commencement date for the purposes of continuous service will be 18/01/2016.” The contract also provided that the Unfair Dismissals Act, 1977 “will not apply to a termination of this contract, where the termination arises as a consequence of the natural expiry of the terms of this contract.”

The expiry date of this fixed term contract was the 21/11/2017. Therefore, it would appear the contract applied retrospectively to the 18th of January 2016.   The respondent stated in evidence that the complainant had a series of fixed term contracts as follows:

3/03/2014 for 6 months, 24/11/2014 for 6 months, 25/05/2015 for 6 months, 18/01/2016 for 1 month, 19/02/2016 for 3 months, 20/05/2016 for 6 months and 21/11/2016 for 12 months. None of these contracts were put into evidence except the final contract as set out above. I note that there were breaks between some of these contracts but the complainant said that he worked continuously from the 3rd March 2014 and had 3 years and 9 months continuous service when he was let go. I accept the complainant’s evidence that his employment was continuous. If the complainant had been provided with contracts for all the above periods it would not have been necessary to state, in the fixed term contract signed by the respondent on the 18th of January 2017, that the commencement date was the 18th January 2016  

In considering this matter I am guided by the jurisprudence of the Labour Court in the case of Malahide Community School and Dawn-Marie Conaty UDD1837. The Court stated:

“ In this case the Respondent sought to rely on the exclusion contained in s.2(2)(b) of the Act which permits the non-application of the protection of the Act to fixed-term contracts which have been executed strictly in accordance with four clear criteria set out in s.2(2)(b), namely: -

·         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 Act shall not apply to a dismissal consisting only of the expiry of the fixed-term or the cesser of the specified purpose.In order for s. 2(2)(b) of the Act to apply the contract must be a bona fide fixed term.”

The Court went on to say:

“A contract is for a fixed term when at the time it is entered into the date of the commencement and of termination respectively are capable of being ascertained” Redmond on Dismissal Law p. 533”.

And

“In order for a dismissal to be taken outside the ambit of the Act the fixed term contract must satisfy the four conditions contained in s.2(2)(b) (mentioned above). These conditions must be completely satisfied, Sheehan v Dublin Tribune Ltd [1992] E.L.R. 239 and O’Connor v Kilnamanagh Family Recreation Centre Ltd UD 1102/1993.”

And

“the Court was not satisfied that the fixed term contract presented to the Complainant for signing in October 2015 was a bona fide contract as the date of commencement had already passed and the date of termination was not easily capable of being ascertained as it envisaged its continuation into another school year.”

I am not satisfied from the evidence that the complainant had any fixed term contract between the 18th of January 2016 and was therefore a permanent employee until the final contract, which expired on the 21st of November 2017, came into being.   As noted above this contract which was signed by the employer on the 18th November 2016 and the complainant on the 9th March 2017 and the commencement date of the employment was the 18th January 2016.

In applying the jurisprudence of the Labour Court cited above, I am not satisfied that the fixed term contract relied on to dismiss the complainant met the criteria of a bona fide fixed term contract as set out by the Court as the date of the commencement had already passed when it was signed by the parties. Furthermore, the contract provided that it applied retrospectively.  

In the circumstances, I am satisfied that Section 2(2)(b) of the UD Act does not apply and the fixed term contract relied upon to dismiss the complainant is void as it does not comply with the provisions of this section and is in breach of Section 13 of the Act.

I note the respondent said the complainant’s contract was not renewed because a redundancy situation existed. I note the that the complainant was the only employee who did not have his contract renewed at that time and shortly afterwards a recruitment campaign commenced as the respondent had secured a new contract. I note that the complainant was not offered a new contract when these vacancies arose.

I am not satisfied that the complainant was dismissed for reasons of redundancy. It follows therefore that the complainant was unfairly dismissed.

I find therefore that the dismissal was unfair.

I order the respondent to re-instate the complainant to the position he held prior to his dismissal in accordance with the S. 7(1)(a) of the Act.

Unfair Dismissals Act, fixed term contract expiry, Section 2(2)(b), Section 13.