UDD1858

Background

Respondent’s case

The Complainant was recruited into the role of clerical officer on a fixed purpose contract on the 22^ndFebruary 2012. The fixed purpose attached to the contract was to temporarily replace a permanent worker who was on authorised leave of absence the duration of which was not known at the outset. The Respondent has a work force of approximately 6,000 staff and at any given time they can have 500 to 600 staff on a mixture of fixed term and fixed purpose contracts. This number can increase up to 1,000 during the summer months. During the tenure of this contract the Respondent had a system in place whereby on a monthly basis the fix purpose contracts were checked to ensure that the purpose behind the giving of the contract still existed. In the case of the Complainant when the Respondent became aware that the individual on the authorised leave had returned to work they moved to end the fixed purpose contract. There was a three- week interval between the individual returning to his permanent position and the Respondent putting the Complainant on notice of the termination of their contract. The return of the permanent employee was picked up during a monthly review and acted on immediately at that point by the Respondent. While not required to do so by law the Respondent had given the Complainant 4 weeks’ notice of the termination of her contract. The respondent drew the Courts attention to clause 7 of the Complainant’s contract which stated

• “The Unfair Dismissals Acts 1977-2005 will not apply to the termination of your employment by reason only of the expiry of this fixed term contract without it being renewed.”

In relation to any perceived delay between the return of the individual whose absence was being covered and the termination of the fixed purpose contract it is the Respondent’s contention that the cesser of purpose only needed to be proximate to the dismissal and that there was no requirement as was being argued by the Complainant for both to happen on the same day.

Complainant’s case

It is the Union’s case that the dismissal was not based solely on the expiry of the specific purpose contract as the purpose expired on the 10^thMay 2017 and the Complainants employment ended on the 30^thJune 2017. The Union contended that the duties the Complainant performed cannot have been the duties of the person she replaced as their employment overlapped for seven weeks. The Union also made a submission in relation to redundancy which was not relevant to the case being heard. The Union contended that a new contract came into being on the 11^thMay 2017 as the fixed purpose no longer existed after that date. The Union could not offer any authorities or documentation to support this contention. It is their position that the Complainant’s contract should have been terminated on the 10^thMay 2017 as in the Unions experience the Respondent would always have a couple of weeks advance notice of when a person was returning to duty.

While the Union did not address the issue of the waiver contained in the contract in their submission in response to questions from the Court the Union on behalf of the Complainant stated that it was their position that the waiver did not apply as the contract was not ended on the 10^thMay 2017, the day the fixed purpose ceased to exist. It is the Union’s position that there were no objective grounds justifying the Complainant’s dismissal.

The law

Section 1 of the Act defines dismissal in the following manner

1. “dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b)……

Section 6(1) states

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

2.— (1) This Act shall not apply in relation to any of the following persons;

……….

(2) shall not apply in relation to—

( a) dismissal where the employment was under a contract of employment for a fixed term made before the 16th day of September, 1976, and the dismissal consisted only of the expiry of the term without its being renewed under the same contract, or

( 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

Issue for the Court

Dismissal as a fact is not in dispute therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair. The question for the Court is whether this dismissal was based solely on the cesser of the fix purpose and therefore falls within the scope of the waiver.

Discussion

It is not disputed that the contract contained a waiver in accordance with section 2(2) (b) of the Act. Nor is it disputed that the contract was signed by both parties. In the circumstances it is for the Complainant to show that the Respondent by their actions had nullified the waiver. It is the Complainant’s case that the 7-week period between the ending of the fixed purpose and the termination of the Complainant’s employment are sufficient to do that. However, the Court must have cognisance of the fact that four of those weeks were a notice period and that the actual period in question is three weeks. The Act does not state that the cesser of the purpose and the termination of the contract much coincide. The Complainant had not demonstrated that any other factor other than the cesser of the fixed purpose was a factor in the decision to terminate the contract. It is clear to the Court that the Respondent once they became aware that the purpose of the contract had ceased acted with reasonable endeavour to bring the contract to an end in a reasonable manner. It is the view of the Court that the Respondent acted in accordance with section 2(2) (b) of the Act and therefore unfair dismissal cannot be claimed.

Determination

Having carefully considered the submissions made both written and oral the Court determines that the Respondent acted in accordance with section 2(2) (b) of the Act. The Court determines that the Complainant’s complaint is not well founded. The appeal is rejected. The decision of the Adjudication Officer is affirmed.

The court so Determines.

Signed on behalf of the Labour Court



Louise O'Donnell
26th October 2018______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.