ADJ-00012308

Complainant

Respondent

Anonymised Parties

A temporary clerical officer

A Government Department.

Representatives

Cliodhna McNamara, Forsa.

Departmental Management.

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-00016057-001

29/11/2017

The Complainant was recruited as a Temporary Clerical Officer in a Government Department on 28th November 2011. Her contract was terminated on 03rd February 2017. The Complainant was recruited to cover the absence of a permanent staff member. The absence referred to began in August 2011 and ended in May 2017.

The complaint to the Workplace Relations Commission was received on 29th November 2017 and was referred under section 8 of the Unfair Dismissals Act, 1977.

Preliminary Argument.

The Respondent has pointed to the fact that the complaint is out of time. The complaint was submitted on 29/11/2017, almost 10 months after the date of dismissal.

Section 8 (2) (b) of the Unfair Dismissals Act, 1977 (as amended) reads as follows:

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause.

By letter dated 4th January 2018 and addressed to the Workplace Relations Commission the Complainant’s union representative has informed that the Complainant was not, for health reasons, in a position to submit her complaint within the six months’ time limit.

I have accepted this letter as reasonable cause and will now proceed to the complaint.

I believe the Respondent was sent a copy of this letter.

The Complainant was assigned as a Temporary Clerical Officer (TCO) in a Government Department on 28/11/2011, in order to temporarily cover the absence of a permanent staff member.

This was the objective reason for the temporary contract and is stated in the contract of employment. The contract was offered and accepted by the Complainant.

The absence referred to began in August 2011 and ended in May 2017. For data protection reasons documentation regarding the absent staff member cannot be shared with the Complainant or her representative.

In November 2016 HR in the Government Department decided to limit the period of absence for which temporary cover could be provided. While previously temporary cover could be provided for as long as a permanent staff member was absent, from November 2016 temporary cover is only now provided for a maximum absence of two years.

Following two years of temporary cover, the absence is then considered to be a permanent vacancy to be filled through recruitment / promotion of a permanent member of staff. This policy relates to the duration of the underlying absence rather than the length of any contracts in place.

In introducing this policy it was necessary to terminate any contracts which covered absences greater than two years. For this reason, the Complainant received notice on 05/01/2017 that her temporary contract would terminate on Friday 03/02/2017.

The position that was being covered by the Complainant was subsequently filled by the assignment of a permanent officer.

As the Complainant had been employed for over two years at the termination of her contract, the Complainant was entitled to a statutory redundancy payment amounting to €5087.85 which issued shortly after the termination of her temporary contract.

It should be noted that even without this policy change the Complainant’s contract would have come to an end in May 2017 once the staff absence being covered came to an end.

Background.

The Complainant was a fixed term worker employed with the Department performing the full range of Clerical Officer duties.

The Complainant’s only contract of employment was dated 28th November 2011 with no end date.

Her appointment was cited as being for the purpose of covering a permanent staff member’s absence.

The Complainant received notification of the termination of her employment on 30th November 2016 and she was dismissed with effect from 3rd February 2017.

Following the Complainant’s dismissal, she received correspondence from her employer dated 28th February 2017 advising that she was entitled to a statutory redundancy payment of €5,087.85 which was subsequently paid to her account (directly implying selection for redundancy).

Union Case.

The Union claims 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 legislation the burden of proof is on the employer to prove that there are substantial grounds justifying the dismissal.

Notwithstanding that the burden of proof is on the employer, the union claims that the work the Complainant was doing is on-going in nature, the nature of the job remains the same, the job continues to exist and the actions of the employer implies that the Complainant was unfairly selected for redundancy dismissing her from employment on 3rd February 2017.

The Department have argued under the Fixed Term Workers Act that the Complainant was on a specified purpose contract which implies that her contract would be terminated at the end of the occurrence of a specific event or cessation of a specific purpose.

The specific purpose cited in her contract was that she was ‘covering a staff members absence’.

In the Department’s submission to the WRC under the Fixed Term Worker’s Act they state that the absence referred to in the Complainant’s contract ended in May 2017. If that is indeed the case why did the employer dismiss her from employment in February 2017?

In this same submission the Department argue that the reason for the dismissal was the introduction of a policy to terminate all contracts which covered absences of greater than two years. This appears to have been done regardless of the contract entered into with the employee and the union would contend that proceeding on this basis effectively meant they dismissed the Complainant from employment unfairly. It certainly wasn’t due to the fact that the specific purpose for which she was recruited had ended as evidenced by the employer.

The union further contends that to be made redundant (i.e. paid a redundancy payment) suggests that the work is no longer being carried out in the workplace but we know this not to be the case.

We believe all of the above demonstrates that the work did not cease nor, did it diminish nor is it expected to cease or diminish at any time in the future.

The union also claims that consultation is a statutory requirement where the employee is challenging the genuineness of the selection for redundancy under the Unfair Dismissals Acts, yet no consultation process was afforded to the Complainant or more importantly no consultation or information process was afforded to her representatives. No procedures were implemented or applied by the employer.

There can be no doubt that the Complainant was issued with a ‘specified purpose’ contract of employment and that purpose was to provide cover during the absence of a permanent member of staff. I refer to ADJ – 00011113 in which the Adjudication Officer found that the Complainant was employed on a ‘fixed purpose contract’ to meet a real need of an absent staff member and thus her complaint claiming a contract of indefinite duration failed.

Section 2 (2) (b) of the Unfair Dismissals Acts 1977 to 2015 reads as follows:

Exclusions.

“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 it 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”.

In November 2016, it was decided to limit the period of absence for which temporary cover could be provided in the Department. It was then decided that after two years of absence the position becomes a permanent vacancy to be filled through the recruitment / promotion of a permanent member of staff. In introducing this policy, it became necessary to terminate any contracts which covered absences more than two years. For this reason the, the Complainant received notice that her temporary contract would terminate on 3rd February 2017.

The introduction of this new policy by the Respondent was therefore the de facto cesser of the specified purpose contract.

I further note that the Complainant was paid a statutory redundancy payment which she accepted.

It should also be noted that even without the introduction of this new policy the Complainant’s contract would have come to an end with the return to work of the absent permanent member of staff a short time after the termination of her contract.

I have considered the complaint and gave both parties the opportunity to be heard and now find that the complaint is not well found, it therefore fails.

Unfair Dismissal; Specified Purpose Contract.