Complainant

Respondent

Anonymised Parties

An Employee

A Car Rental Company

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-00010267-001

16/03/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00010267-002

16/03/2017

The Complainant was employed, in the role of bus driver/garage worker, by the Respondent, a car hire company, from 26 April 2014 to 22 November 2016, with two breaks of employment in that period.

The Complainant submitted two complaints in relation to his employment with the Respondent. The first complaint was under the Terms of Employment (Information) Act 1994 and the second claim was under the Unfair Dismissal Acts, 1997 – 2015.

The Complainant submitted that, during his employment, he was laid off in two separate occasions. He stated that on the occasion of his first break he received a letter from management dated 15 February 2015, confirming that his employment was terminated due to seasonal downturn.

According to the Complainant’s evidence, there was never any consultation with him or reason given as to why his employment was being terminated. The Complainant stated that he was not the last employee to be employed with the company and, as a result, he could not reconcile as to why he was being let go. The Complainant referred to a colleague who was employed after him and was working in the garage, without any periods of lay-off.

The Complainant stated that on that occasion, he was dismissed from his employment without consultation, notice or fair procedure.

According to the Complainant’s evidence, he was subsequently brought back by the Respondent for a period of 6 months in the same role and same capacity, working with the same conditions of employment. The Complainant stated, that on his return, he was provided with a fixed term contract of employment, of duration six months from 30 April 2015 to 30 October 2015. However, the Complainant stated that he did not sign this contract.

The Complainant stated that the working conditions set out in this contract of employment were the same as those which applied to his first period of employment. The Complainant further pointed out that despite the fact that the contract was due to end on 30 October 2015, he worked on until 14 December 2015 at which point he received a notification indicating that he was being laid off again. The Complainant contends that the Respondent’s failure to end the period of employment in line with the terms set out in the contract of employment resulted in his contract becoming a contract of indefinite duration.

The Complainant contends that, similar to the first occasion, he was let go on this occasion without any consultation and with no regard for fair process/procedure or notice. He was also not given any notice. According to the Complainant’s evidence, he was re-employed by the Respondent on 19 January 2016. The Complainant stated, in evidence, that, similar to his first period of employment, he was not provided with any contract of employment or statement of terms and conditions of employment , which he contends is in breach of Section (3) of the Terms of Employment (Information) Act , 1994 .

According to the Complainant, the Respondent had, by this time, employed another individual for garage work. The Complainant further stated that, in October 2016, a different individual was employed and was doing the same work as the Complainant. According to his evidence, the Complainant was constantly busy but the Respondent had clearly also taken on more employees. The Complainant stated that, in November 2016, he was advised that his employment would be terminated and he received a letter to this effect dated 20 November 2016, which confirmed that his employment would cease on 23 November 2016 due to seasonal downturn. This represented the Complainant’s last period of employment with the Respondent. Once again, the Complainant stated that there was no consultation process, no fair procedure and no notice furnished to him.

In supporting his claim, the Complainant referenced the Minimum Notice and Terms of Employment Act 1973 (First Schedule) in relation to continuity of service. In particular, the Complainant referred to Paragraph 6 of the aforementioned Schedule where it states that: “the continuous service of an employee in his employment shall not be broken by the dismissal of the employee by his employer followed by the immediate re-employment of the employee “.

The Complainant also referred to Paragraph 10 of the Schedule where it states that: “if an employee is absent from his employment for not more than 26 weeks between consecutive periods of employment because of ( a) a lay-off , ( b) sickness or injury , or ( c) by agreement with his employer, such period shall count as a period of service”.

The Complainant contends that the Respondent was terminating his employment, particularly on the first occasion, so as to attempt to break the chain of continuity of service and furthermore, in order to avoid liability under the Unfair Dismissal Acts by attempting to not allow him to attain 52 weeks of service. In support of his contention this regard, the Complainant reference case law.

According to the Complainant, the Respondent had no regard for a consultation process or fair procedures. In addition, the Complainant stated that the Respondent had no regard for notice periods as none was provided on any of the three occasions on which his employment was terminated. The Complainant contends that there are no substantial grounds to justify his dismissal from his employment.

In response to the Respondent’s contention that the lay-off was due to a downturn in business, the Complainant stated that during the period 2014 to 2016 passenger numbers have actually increased at the airport where he was based. The Complainant also stated that he was re-employed by the Respondent after just two months on the first occasion.

The Complainant submitted further references to case law in relation to the requirement of an employer to provide employees with fair procedures and to demonstrate reasonableness in the dismissal of an employee. The Complainant stated that on each occasion he was provided with his P.45 by the Responded in an effort to terminate his employment on a formal footing. The Complainant submits that there was no break in service and that he had the requisite length of service to claim for unfair dismissal and, on that basis, contends that he was dismissed unfairly from his position contrary to Section ( 8) of the Unfair Dismissal Act 1997.

Background:

It was submitted that the Respondent is a commercial car hire business. It was stated that the peak period the Respondent’s business is during the summer months when, typically, circa 200 people are employed nationally throughout its branch network.  

According to the Respondent’s evidence, the Complainant was employed as a driver/car valeter. The Complainant’s duties involved a mix of driving and car cleaning/valeting. According to the Respondent the Complainant was regarded as a good worker. It was further stated that the Complainant typically worked a 40 hour week, on a rostered shift basis and typically earned €366.40   gross.

Respondent’s response to substantive claims:

CA-00010267-001 – Unfair Dismissal Act

The Respondent accepted that the Complainant’s employment terminated on 22 November 2016. However, in response to the Complainant’s contention that his date of commencement was 26 April 2014 and that he had close to 2 years and seven months unbroken service, the Respondent submits that this was not factually correct. In this regard, the Respondent pointed to elements of the Complainant’s complaint form, where he states that he was employed on “a series of fixed term contracts”.

The Respondent contends that the Complainant was employed on three separate periods: (1) from 27 April 2014 to 22 February 2015 – a total of 301 days employed, (2) from 30 April 2015 to 18 December 2015 – a total of 232 days employed and (3) once every 2016 to 22 November 2016 – a total of 295 days employed. The Respondent asserts that the Complainant’s service was broken on 22 February 2015 and again on 18 December 2015.

The Respondent’s representative made detailed legal submission with regard to the applicability of the Unfair Dismissals legislation to the within case. It was firstly submitted that the Complainant’s claim is excluded under Section 2(1)(a) of the Unfair Dismisses Act 1977, which stipulates that the Act shall not apply to employees with less than one year’s continuous service. In this regard, the Respondent’s legal representative stated that, as the Complainant’s service was broken on two separate occasions, he does not have the requisite continuous service to sustain the claim under the 1977 Act.

Secondly, with reference to what the Respondent considered as the Complainant’s reliance on the Unfair Dismissal (Amendment) Act, 1993, it was submitted that the Complainant is confused in respect of the purpose and effect of that legislation which it is contended (by the Respondent) is being improperly/incorrectly invoked/relied upon by the Complainant in this case.

According to the Respondent’s legal representative, the net effect of the 1993 Act is that where an employee is dismissed having been employed on more than one continuous fixed term contract or on fixed term contract with the gap between the contractors less than three months, the Adjudication Officer, in any unfair dismissal claim, has discretion to determine that the 1977 Act shall apply to the dismissal if he/she is of the opinion that “the entry by the employer into the subsequent contract was wholly or partly for or was connected with the purpose of the avoidance of liability under this Act”.

The Respondent submitted that there was no written contract between the Respondent and the Complainant and, more specifically, the parties had not agreed fixed dates purposes either reduced to writing and signed (as required), or at all. Moreover, it was submitted that no written dis-application of the provisions of the 1977 Act existed.

The Respondent’s legal representative pointed to the definition of a fixed term contract, as set out in the Labour Court decision in Irish Museum of Modern Art v Stanley [FTD 146] (2014) where it was stated as follows: “the defining characteristic of a fixed term contract, or fixed term employment, is that it is determined by an objective condition which is identifiable without reference to the view or perception or intervention of either party to the contract”.

According to the Respondent, this objective condition is singularly absent from the within case. It was stated that, on commencement of the Complainant’s employment with the Respondent, it was not possible to determine the date on which that employment would end. Consequently, it is submitted by the Respondent that the Complainant cannot succeed in the claim pursuant to the 1997 Act, as a discretion available to the Adjudication Officer does not arise in the present circumstances and there is no mechanism by which the breaks in the Complainant’s service can be disregarded.

Therefore, the Respondent submitted that the Complainant’s claim must fail by virtue of Section 2(1)(a) of the 1977 Act.

CA-00010267-002 – Terms of Employment (Information) Act, 1994

It was conceded by the Respondent that the Complainant was not furnished with a written Statement of Terms and Conditions of Employment, within two months of his employment commencing. Therefore, it was acknowledged, by the Respondent, that the Complainant must succeed in respect of his claim under the 1994 Act.

However, it was stated on behalf of the Respondent that it is worth noting that the Complainant did not himself seek such a written statement of employment, albeit, it is further accepted that a positive obligation rests with the Respondent to tender same, whether or not same is requested.

In addition, it was submitted by the Respondent that, in the context of a total period of unbroken service of just 9.5 months, the transgression is not at the more serious end of the scale.

Having reviewed all of the evidence presented, I am satisfied that the following facts, pertain to the Complainant’s complaints have been established:

Firstly, the Complainant had three periods of employment with the Respondent as follows:

(1) 27 April 2014 to 16 February 2015

(2) 30 April 2015 to 14 December 2015

(3) 19 January 2016 to 23 November 2016

The gaps between the Complainant’s employment ceasing and his re-employment were 73 days and 36 days respectively. The Complainant was not re-employed following the conclusion of the third period of employment, on 23 November 2016.

Secondly, the reason provided to the Complainant for the termination of his employment was similar on each of the three occasions. Letters from the Respondent dated 15 February 2015, 14 December 2015 and 20 November 2016 all stated that the Complainant’s employment was ceasing as a result of “seasonal downturn in the company’s business”.

Further, it is clear that, in each of the three periods of employment, the Complainant held a similar role and carried out similar duties. Consequently, there was no change in the nature of the Complainant’s work from one period to another.

Based on the above, I considered the Complainant’s claims under the Unfair Dismissal Acts and the Terms of Employment (Information) Act 1994. My findings and conclusions in those regards are set out below.

CA-00010267-001 – Unfair Dismissal Act

The Complainant’s complaint under the Unfair Dismisses Acts relates to his contention that the Respondent punctuated his employment with a number of breaks in an attempt to prevent him from availing of the protection of the said Acts.

In this regard, the Complainant was referring to Section 2(1)(a) of the Unfair Dismissal is Act, 1977, which states as follows:

“this Act shall not apply in relation to any of the following persons:

(a)    An employee (other than a person referred to in section 4 of this 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 and his dismissal does not result wholly or mainly from the matters referred to in section 6 (2) (f) of this Act”.

The Complainant contended that, in terminating his employment on 15 February 2015 and on 14 December 2015, at which points in time he had accumulated nine and seven months service respectively and subsequently re-employing him approximately three and one month later respectively, the Respondent had effectively deprived him of the protection of Section 2(1)(a) of the Act, as set out above.

In their response to the complaint in this regard, the Respondent contended that the Complainant’s employment service was broken on two separate occasions and, as a result, the Complainant did not have the requisite continuous service to sustain the claim under the 1977 Act. Consequently, given the positions of both parties on this issue, it was necessary to give careful consideration to whether there was a case for continuous service in relation to the Complainant’s employment.

The evidence shows that the period between the Complainant first commencing employment on 26 April 2014 and the conclusion of his second period of employment on 14 December 2015 was approximately 20 months in duration. That total is made up of approximately 17 months of employment, with the remaining 2.5 months representing the combined total of the breaks between the two periods of employment.

If the calculation is extended to include the third period of employment, i.e. the period between 26 April 2014 and 23 November 2016, (a period of approximately 30 months in total) it shows that the Complainant was employed by the Respondent for approximately 27 months, which leaves a period of 3.5 months duration, in which the Complainant was not employed. This statistic clearly provides a strong basis to suggest that the Complainant may be entitled to consider this as a period of continued service, broken only by two short periods of lay-off.

Section 11 (1) of the Redundancy Payment Act 1967, states as follows:

“Where after the commencement of this Act and employees employment ceases by reason of his employers being unable to provide the work for which the employee was employed to do and

(a)    it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b)    the employer gives notice to that effect to the employee prior to the cessation,

that cessation of employment shall be regarded the purposes of this Act as lay-off”.

While I was not presented with any evidence to suggest that the Complainant was given notice, prior to his breaks, that the cessation of his employment would not be permanent, I am satisfied, based on the facts of the case, that the Complainant’s breaks were consistent with the definition of “lay-off” as set out in the above section of the Act. This is based on the short duration of the breaks, 73 days in the case of the spring break and 36 days in the case of the winter break, in the overall context of an employment history that spanned 30 months in total, from commencement in April 2014 to conclusion November 2016.

With regards to the two periods during which the Complainant was not employed by the Respondent, the latter stated that these resulted from seasonal downturns in the business. I note from the Respondent’s evidence, that the peak season for business was during the summer. In this context, I note that the two periods of lay-off for the Complainant, i.e. 16 February 2015 to 30 April 2015 and 14 December 2015 to 19 January 2016,   occurred on either side of the peak season.

In this regard, I find the timings   of the breaks to be somewhat inconsistent. The first break took place between 16 February 2015 to 30 April 2015.   However, the third period of employment, i.e. 19 January 2016 to 23 November 2016, covered that same period of time during which the Complainant was laid off the previous year. This clearly undermines the contention that the breaks were due to “seasonal” downturns, as the 2015 and 2016 seasons are clearly not similar.

In addition, in this regard, I note the Complainant’s evidence, that others were doing his work while he was on break and new employees were hired at that time. This further undermines the credibility of the Respondent’s contentions in this regard.

Finally, in this regard, I note the Complainant’s evidence in relation to increased passenger traffic numbers at the airport in the period 2014 to 2016. This would suggest that, on the balance of probability, the Respondent’s business might be expected to increase on the back of these increases.

The legal definition of Continuity of Service is set out in the First Schedule of the Minimum Notice and Terms of Employment Act, 1973, where it states as follows:

“1. The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by—

(a) the dismissal of the employee by his employer, or

(b) the employee voluntarily leaving his employment.

2. A lock-out shall not amount to a dismissal of the employee by his employer.

3. A lay-off shall not amount to the termination by an employer of his employee's service.

4. A strike by an employee shall not amount to that employee's voluntarily leaving his employment.

5. An employee who gives notice of intention to claim redundancy payment in respect of lay-off or short-time shall be deemed to have voluntarily left his employment.

6. The continuous service of an employee in his employment shall not be broken by the dismissal of the employee by his employer followed by the immediate re-employment of the employee.

7. If a trade or business is transferred from one person to another (whether or not such transfer took place before or after the commencement of this Act) the continuous service of an employee in that trade or business at the time of the transfer shall be reckoned as continuous service with the transferee and the transfer shall not operate to break the continuity of the service of the employee.”

Having carefully considered the situation in relation to the within case, I am satisfied that the Complainant was not dismissed by the Respondent and did not leave his employment voluntarily on the occasion of either of the breaks.

In addition, I am also satisfied that the short duration of the said breaks would comply with the provision as set out in Point 5 in the above extract from the Act. This is further confirmed by Section 3 (b)(i) and (II) of the Unfair Dismissals (Amendment) Act, 1993, states, inter alia, that where an employee is re-employed within three months and the nature of the employment is the same as or similar to that of the employment under the prior contract then:

“the terms of the prior contract and of any antecedent contracts shall be added to that of the subsequent contract for the purpose of the ascertainment under this Act of the period of service of the employee with the employer and the period so ascertain shall be deemed for those purposes to be one of continuous service.”

Taking all of the above into consideration, I find that the period commencing 26 April 2014 and concluding on 23 November 2016 represents a period of continuous employment for the Complainant and that this, in turn, provides him with the full protection of the Unfair Dismissal Act, 1977.

Consequently, the Complainant’s complaint for unfair dismissal relates specifically and solely to the termination of his employment on 23 November 2016.

Section 6 (1) of the Unfair Dismissal of Act, 1977, states that:

“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”.

Having carefully considered all the evidence adduced in this case I find no substantial grounds with which would have justified the Complainant’s dismissal on 23 November 2016. Consequently, I find that the Complainant was unfairly dismissed on that occasion.

When considering the issue of compensation for loss, the earlier finding, as set out above, that the breaks between the Complainant’s three periods of employment represented legitimate lay-offs, eliminates those periods from the calculation. Therefore, on the basis that the Complainant obtained alternative employment, which commenced on 13 February 2017, the appropriate compensation period is 12 weeks.   Consequently, based on this period, I find that an award of €1,300.00 is a fair and reasonable compensation for the loss incurred.

CA-00010267-002 – Terms of Employment (Information) Act, 1994

The Respondent conceded that the Complainant was not furnished with a written Statement of Terms and Conditions of employment within two months of his employment commencing.

Consequently, in line with Section 7(2) of the Terms of Employment (Information) Act, 1994, I award the Complainant an amount of €700.00 as representing a just and equitable compensation for the Respondent’s breach of the Act.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I set out my decisions in relation to the two elements of the Complainant’s complaint as follows:

CA-00010267-001 – Unfair Dismissal Act

I find that, due to a continuous period of service from commencement to conclusion of his employment with the Respondent, the Complainant has the protection of the Unfair Dismissals Act.

I also find that the third and final termination of the Complainant’s employment on 23 November 2016 represented an unfair dismissal, for which I award him an amount of €1,300.00 in compensation for his loss.

CA-00010267-002 – Terms of Employment (Information) Act, 1994

I find that the Respondent was in breach of the Act by their failure to provide the Complainant with a Statement of Terms and Conditions of Employment and make an award of €700 to the Complainant in compensation.

Unfair Dismissal Act

Terms of Employment (Information) Act

Continuity of Service