Complainant

Respondent

Anonymised Parties

Clerical Officer

Public Sector Employer

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-00011554-001

24/05/2017

The claimant was employed as a Clerical Officer on a fixed term contract from March 2013 to the 30th.December 2016 when he submitted he was unfairly dismissed. It was submitted that Section 2(2)b provides that a dismissal occurring because of the expiry of a subsequent employment contract is subject to the Act if “partly for or connected with the purpose of the avoidance of liability”. It was submitted that the claimant was unfairly selected for redundancy and that his unfair selection was connected to the avoidance of liability under the Fixed Term Workers Act and that there are no substantial grounds justifying the dismissal. A chronology of the claimant’s employment with the Dept was set out. It was advanced that the claimant performed the full range of clerical officer duties and that both of his contracts stated that his appointment was for the purpose of covering a permanent staff member’s absence.

It was submitted that “the expiration of a contract of employment for a fixed term without it being renewed under the same contract, or, in the case of 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 dismissal”. It was contended that as the claimant’s job continued to exist the action of the employer implied that the claimant was unfairly selected for redundancy.

It was contended that the claimant’s work continued to be performed initially by his colleagues and subsequently by a replacement temporary clerical officer until June 2017 when a permanent Clerical Officer was assigned to the substantive post. It was submitted that this demonstrated that the work had not cease or diminished, that the claimant was dismissed and that the work is still being carried out. It was submitted that consultation is a statutory requirement where the genuineness of a redundancy is being challenged and yet no consultation took place with the claimant or his representatives.

The union asserted that it had no knowledge of pressure from D/PER to effect staff reductions and submitted that this policy was exclusive to the respondent’s dept. and it was advanced that there had been no acceptance of this policy by the union in circumstances where the jobs were still there. The provisions of the Labour Court Determination on r-157374-ft-15 Fiona McLoughlin and DSP was invoked and the union submitted that it did not accept the respondent’s contention that the respondent Dept. rigidly adhered to the PAS panel recruitment system.

In response to the post hearing submission of the respondent the union submitted as follows:

“All government departments are allocated budgets to work within since 2015. This saw a return to delegated sanction following the moratorium, where government departments were allocated Employment Control Framework Numbers (ECF’s) within which they were required to work.

All government departments tried to control their ECF’s by forecasting retirements, the non-filling of vacancies, the non-filling of consequential vacancies following promotion, devolving functions, transfer of duties and succession planning. Numbers fluctuated in government departments from quarter to quarter as well as from year to year and this was understood by all parties. The union is completely unaware of any insistence by D/PER for the respondent or any other government department to remain within a specific head count (ECF) in 2016 as they had returned to delegated sanction by then, and all government departments tried to stay within their ECF’s as best they could.

In their submission the Department advise that ‘as part of the measures agreed’, it was necessary to reduce the numbers of temporary staff assigned to covering staff absences and that all temporary clerical officer contracts were reviewed. They advise that this was done with an aim to bring the Department ‘as close as possible to sanctioned figures by the end of the year’.

The union would be interested to know what other measures were agreed upon if the reduction of TCO’s was only part of the measures?

It is significant to note that temporary clerical officers do not count towards departmental headcounts as they are supposed to be temporary employees employed on contract to cover a specific absence for a specific time and there to meet a transient need. To count them would be counting two people for one post which is only possibly relevant when counting staff members working on a worksharing basis. In this regard it is unclear how this measure would have satisfied the aim.

In response to the a – c criteria in the review of TCO contracts:

a)       The claimant did not meet this criteria as his contract had no end date

b)      The claimant did not meet this criteria according to DSP as they have advised that his last contract was covering for maternity leave (which of course

would not be longer than two years)

c)       The union are completely unaware of any LIFO (last in first out) exercise conducted in this regard and would be very interested to see the outcome of the review and the report on same.                                                                                                                                                                                                                                                                                                                                                                                                                                                   

It is s very difficult to understand how the Department could have terminated contracts on a LIFO basis as to do so would completely contravene the Fixed-term workers legislation which provides for contracts to end at 1) a specific end date; 2) the completion of a specific task or 3) the occurrence of a specific event and the Unfair Dismissals Act.

The fact that the department have acknowledged ending 27 contracts early is of grave concern to this union and in our view demonstrates a disregard for both the Fixed Term Workers legislation and the Unfair Dismissals legislation.

The union conclude in response that the department have substantiated the argument that the claimant was unfairly dismissed from employment.”

In their pre hearing submission the respondent submitted as follows

The claimanthas made a complaint to the Workplace Relations Commission under the Unfair Dismissal Act 1977. The redress sought by the claimant is reinstatement.

The basis of this complaint is that the claimant was employed as a Temporary Clerical officer (TCO) on a fixed purpose contract with the respondent in a rural office. The claimant was issued with notice of the termination of his employment on 18th November 2016 with a termination date of 30th December 2016.

Background

The claimant was employed with the respondent for 2 periods as a temporary clerical officer.

Purpose for Contract 19 March 2013 to 26 August 2016

The claimant was recruited on 19th March 2013, from the Temporary Clerical Office panel that was established by the Public Appointments Service (PAS). He was provided with a temporary contract of employment where the stated purpose was to provide cover for a staff member’s absence. This was specifically to cover the sick leave of a permanent officer in the respondent’s office. This officer retired on ill health grounds 9th August 2016. As this was now a permanent vacancy, for which temporary cover is not appropriate, the claimant was given notice that his contract would terminate on Friday 26th August 2016. The permanent vacancy was subsequently filled by a permanent officer in October 2016.

Purpose for Contract from 28th August 2016 to 30th December 2016.

In August 2016 another permanent staff member’s absence was approved for temporary cover. Specifically this was to cover the Maternity leave absence of the permanent officer. We contacted the Public Appointments Service (PAS) who have responsibility for the maintenance of the TCO panel and the assignment of temporary clerical officers to all Government Departments. The claimant who was next on the 2016 TCO panel for this location was assigned by PAS to the respondent’s office for this contract. The claimant was then issued with a new contract from 29 August 2016 to cover this further temporary absence.

Background to the decision to terminate the contract

The respondent Dept. had exceeded the Department of Public Expenditure and Reform (DPER) approved 2016 end of year staffing allocation and was required to reduce its staff numbers in order to comply with their sanction. The decision to end the claimant’s and a number of other temporary contracts on 30th December 2016 was made so as to comply with DPER sanction and so as to ensure that there would be no over-run on the 2017 delegated sanction which involved a reduced budget and staffing allocation. The decision was not taken for the purpose of circumventing employment law nor the rights of any of the temporary clerical officers involved. As the claimant had over 2 year’s continuous service at the cessation of his contract, he was issued with a statutory redundancy payment which amounted to €4,028.14 in February 2017.

The Position of the Respondent Dept.

It is acknowledged that the claimant’s temporary contract which commenced on the 29th August 2016 was terminated before the purpose for which the claimant was recruited has ceased. Therefore the Department has offered to pay the claimant his full salary to the end of the absence that he was covering (8 weeks salary amounting to €2,947.12) as full and final settlement in relation to this complaint.

Exclusion Clause

This temporary contract which was accepted by the claimant included an exclusion clause that advises that the Unfair Dismissals Act 1977 -2005 will not apply to the termination of the employment by reason only of the expiryof the fixed purpose contract without it being renewed.

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

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.

Should the claimant have been retained up to the expiry date of the purpose for which he was recruited, his contract would have been terminated on 24th February 2017 and the above exclusion clause would have applied. It is accepted that the respondent terminated the contract early and have offered to compensate the claimant by paying him his full salary to 24th February 2017.

The claimant has also made a complaint under the Fixed Term Work Act 2003, and the hearing was held 22nd June 2017. We are awaiting that determination.”

At the hearing, the respondent was requested to clarify the decision making process applied by HR in the termination of the claimant’s contract and the representative undertook to consult with HR following which the following submission was made:

“As with all Government Department, the respondent Dept. is required to work within the budgets and headcount restrictions set by the Department of Public Expenditure and Reform. The Department is not permitted to exceed sanctioned limits.

In October 2016 D/PER became aware that the Department was at risk of exceeding our sanctioned headcount for 2016 and insisted that the Department take measures to get close to our sanctioned 2016 figures by end-year. A paper was discussed at Management Board setting out the options available, and an approach was agreed which would bring the Department as close as possible to sanctioned figures by the end of the year.

As part of the measures agreed it was necessary to reduce the numbers of temporary staff assigned to covering staff absence. All temporary clerical officer contracts were reviewed to identify the following:

a.       Contracts where the specified term or purpose has ceased or will cease before the end of the year.

b.       Contracts where the underlying absence is longer than two years. Following a recent decision of the Labour Court it was decided that the Department would limit our temporary cover to two years.

c.       Contracts which were to be terminated in order to reduce the Department’s overall numbers covering staff absence. Contracts were identified on a “last in first out” basis in those locations which had been identified by managers as having potential for reducing the amount of cover for staff absence.

In the case of contracts identified under b. and c. above notice was issued to terminate the contracts on 30th December. Arising from these measures the Department had an end of year figure only marginally above the sanctioned headcount. 27 contracts were terminated early.

I have reviewed the evidence presented at the hearing and considered all of the submissions made by the parties.

The respondent is relying to a significant extent on the provisions of the exclusion clause in the claimant’s contracts which excluded him from the protection of the Unfair Dismissals Acts. I have considered this submission and reject it on the basis that the claimant’s contract had no end date and was terminated prematurely in advance of the expiry of the maternity leave of the substantive post holder. In these circumstances, I have concluded that the claimant is entitled to rely on the provisions of the Unfair Dismissals Acts and I am satisfied that this is entirely consistent with the principles set by the Labour Court in UDD1752 (Malahide Community School and Dawn-Marie Coonaty) and the later determination on the same case in UD 1837.

The respondent asserted in their submission that “As the claimant had over 2 year’s continuous service at the cessation of his contract, he was issued with a statutory redundancy payment which amounted to €4,028.14 in February 2017”. It is evident however that as contended by the union and as ultimately not disputed the respondent , the work continued initially by way of a rota from amongst the permanent pool of staff at the location and subsequently by a temporary Clerical Officer.

Having considered the entirety of the evidence and submissions made, I have concluded that the termination of the claimant’s employment was unfair on the following grounds:

There was no engagement with the claimant or his union on the criteria to be applied for terminating the claimant’s contract in December 2016 by reason of purported redundancy.

No alternative to the purported redundancy was considered or explored with the claimant or his union.

There was no evidence presented of a transparent agreed matrix for determining whose contracts should be terminated.

No evidence was advanced to demonstrate that the respondent had regard to the impact of the unilateral and premature ending of the claimant’s contract in circumstances where he could have potentially have acquired rights to a CID in March 2017 – the decision to terminate the claimant’s contract was advised to him in mid Nov. 2016 at a point in time when the return date of the substantive postholder was not definitive.

The position held by the claimant was filled by another temporary Clerical Officer in February 2017 – this supports the union’s contention that the work continued.

The union’s assertions that

a)      it is completely unaware of any insistence by D/PER for DSP or any other government department to remain within a specific head count (ECF) in 2016 as they had returned to delegated sanction by then and

b)      all government departments tried to stay within their ECF’s as It is significant to note that temporary clerical officers do not count towards departmental headcounts as they are supposed to be temporary employees employed on contract to cover a specific absence for a specific time and there to meet a transient need

undermines the credibility of the defence advanced by the respondent.

The claimant did not meet the criteria set out by the respondent with respect to 2 of the criteria advanced by the respondent as considerations in their unilateral contract review and the union was entirely unaware of the LIFO exercise (criteria 3) undertaken by the respondent.

In all of the circumstances, I am upholding the complaint of unfair dismissal and require the respondent to reinstate the claimant with effect from the 1st.January 2017.