ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014926
Complaints:
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-00019429-001 | 25/05/2018 |
Date of Adjudication Hearing: 13/11/2018
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant contends that he was unfairly dismissed when his 12 month contract expired. |
Summary of Respondent’s Case:
The Respondent denies the Complainant was unfairly dismissed. He was employed on a fixed term contract from 7th December 2016 to 31st December 2017 wherein it provides:
“All contracts are limited to and inclusive of funding and shall coincide with the issuing of the funders contract”.
The Complainant was at all times aware that his position was for a fixed term and subject to funding. The Respondent notified the Complainant and the other employees by way of letter on 20th November 2017 that their contract was due to expire on 31st December 2017. The letter further advised that the Respondent was awaiting results from the new funding tender and if successful the Complainant would be invited to apply for the positions available. All employees were treated equally in the matter, provided with notice and given the opportunity to apply for the positions available. At the end of the fixed term contract the Complainant’s position no longer existed. During the notice period, the Complainant did not raise any grievances. The other employees contracts also expired on 31st December 2017 and the new roles commenced on 10th and 15th January 2018. On 11th December 2017 the Respondent advised the Complainant of the successful funding application and that the positions would be advertised internally and he was notified of the interview dates. On 20th December 2017 the Respondent advised staff, including the Complainant of the Co-Ordinator’s position advertised and that the closing date was 3rd January 2018.
The Complainant did not apply for the position and he commenced employment elsewhere on 10th January 2018. It is contended that the Complainant was not dismissed. His contract ceased by way of cessation of the fixed term contract.
Summary of Complainant’s Case:
The Complainant contends that as a preliminary point, the Complainant’s claim is properly submitted as : He was engaged on a fixed term contract from 7th December 2016. His employment was terminated on 31st December 2017, therefore he had the requisite twelve months service to enable him to avail of the provisions of the Act. Further, it is submitted that as his contract does not contain any exclusion clause provided for in Section 2 (2) (b) of the Act, the Respondent cannot argue that the provisions of the Act do not apply to the expiry only of the fixed term contract. |
It is for the Respondent to establish that the dismissal was fair. Section 6 (6) of the Act provides “In determining, for the purposes of this Act, whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal”.
The background to the dismissal is as follows:
The Complainant was recruited to the position of Manager and commenced on 7th December 2016. By mid to late February 2017 he spoke with the CEO as he was concerned about the volume of work that he had to undertake. He had to work late every evening and at weekends at home. The Complainant again spoke with the CEO in June 2017, by which time he had accumulated over 100 hours TOIL. On 25th May 2017, the CEO told him he was going to extend his probationary period. The Complainant was shocked as there had not been any issues about his work. By letter dated 20th November 2017, the Complainant was notified by the Respondent that his ‘fixed term contract’ was due to expire on 31st December 2017 and that his employment would terminate on that date. It further stated that the results of funding tender were awaited and that he would be invited to apply for the positions available. On 11th December the Complainant was advised by email that there was a decision to cease the position of Manager and recruit a Coordinator and that interviews would take place in January. The new position of Coordinator was in effect renaming the position of Manager and the requirement to re-interview the Complainant was a sham. As it happens the position of Coordinator was never filled, and the position of Manager was advertised twice, the latest expressing to be a fixed term contract up to 31st December 2022. It is argued that while the employment of the Complainant ceased on the expiry of his fixed term contract, the termination of his employment was related to factors other than the expiry of his contract.
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Findings and Conclusions:
The Respondent in denying that the Complainant was unfairly dismissed relies on the argument that his employment ended by way of the end of his fixed term contract. The exclusion provided in this case in the Act provides as follows: Section (2) (2) (b) “This Act shall not apply in relation to – (a)… (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 the cesser aforesaid”. This subsection permits an employer to avail of a fixed term or specified purpose contract and ensure that the Acts do not apply when the term expires or the purpose ceases. Paragraph (b) provides, however that 4 conditions must be satisfied. The contract must (1) Be in writing (2) Be signed by or on behalf of the employer (3) Be signed by the employee (4) Must provide that the Unfair Dismissals Act 1977 shall not apply to a dismissal consisting only of the expiry of the fixed term or the cesser of the specified purpose. These conditions must be completely satisfied (O’Connor v Kilnamanagh Family Recreation CentreLtd UD 1102/1993). In this case, I note there is no clause in the Complainant’s contract providing the wording at condition 4 above. Therefore the Act applies to the Complainant and I now consider whether he was dismissed fairly or unfairly. From the Complainant’s evidence there were some tensions between the Complainant and his Manager, and there was some threat to extend the Complainant’s probation. The Respondent decided to replace the position of Manager with Coordinator and this involved a downsizing of the Complainant’s job and pay. Instead of communicating and consulting with the Complainant the Respondent took the decision to terminate his employment on the basis that the end of the fixed term contract had come about. However, the contract of employment states that the contracts are subject to annual reviews and subject to performance and funding. I note the short time between notifying the Complainant of the expiry of his contract and the termination of his employment (20th November 2017) and the announcement that there would be a position of Coordinator (11th December 2017) and I find the position of the Respondent in terminating the employment of the Complainant to be therefore somewhat disingenuous. I find there were in fact no substantial reasons for the Complainant’s dismissal and that the dismissal was unfair in the circumstances. I find the Complainant’s complaint to be well founded.
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Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I find that the Complainant was unfairly dismissed.. I consider that compensation is the appropriate remedy and I require the Respondent to pay to the Complainant the sum of €7,500.
Dated: 17/01/2019
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
CORRECTING ORDER ISSUED PURSUANT TO SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT,1997
The order corrects the original decision issued on the 17th January 2019 and should be read in conjunction with that decision
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014926
Parties:
| Complainant | Respondent |
Anonymised Parties | Manager | Community Scheme |
Representatives | Fórsa Trade Union | Consultants |
Complaints:
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-00019429-001 | 25/05/2018 |
Date of Adjudication Hearing: 13/11/2018
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant contends that he was unfairly dismissed when his 12 month contract expired. |
Summary of Respondent’s Case:
The Respondent denies the Complainant was unfairly dismissed. He was employed on a fixed term contract from 7th December 2016 to 31st December 2017 wherein it provides:
“All contracts are limited to and inclusive of funding and shall coincide with the issuing of the funders contract”.
The Complainant was at all times aware that his position was for a fixed term and subject to funding. The Respondent notified the Complainant and the other employees by way of letter on 20th November 2017 that their contract was due to expire on 31st December 2017. The letter further advised that the Respondent was awaiting results from the new funding tender and if successful the Complainant would be invited to apply for the positions available. All employees were treated equally in the matter, provided with notice and given the opportunity to apply for the positions available. At the end of the fixed term contract the Complainant’s position no longer existed. During the notice period, the Complainant did not raise any grievances. The other employees contracts also expired on 31st December 2017 and the new roles commenced on 10th and 15th January 2018. On 11th December 2017 the Respondent advised the Complainant of the successful funding application and that the positions would be advertised internally and he was notified of the interview dates. On 20th December 2017 the Respondent advised staff, including the Complainant of the Co-Ordinator’s position advertised and that the closing date was 3rd January 2018.
The Complainant did not apply for the position and he commenced employment elsewhere on 10th January 2018. It is contended that the Complainant was not dismissed. His contract ceased by way of cessation of the fixed term contract.
Summary of Complainant’s Case:
The Complainant contends that as a preliminary point, the Complainant’s claim is properly submitted as : He was engaged on a fixed term contract from 7th December 2016. His employment was terminated on 31st December 2017, therefore he had the requisite twelve months service to enable him to avail of the provisions of the Act. Further, it is submitted that as his contract does not contain any exclusion clause provided for in Section 2 (2) (b) of the Act, the Respondent cannot argue that the provisions of the Act do not apply to the expiry only of the fixed term contract. |
It is for the Respondent to establish that the dismissal was fair. Section 6 (6) of the Act provides “In determining, for the purposes of this Act, whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal”.
The background to the dismissal is as follows:
The Complainant was recruited to the position of Manager and commenced on 7th December 2016. By mid to late February 2017 he spoke with the CEO as he was concerned about the volume of work that he had to undertake. He had to work late every evening and at weekends at home. The Complainant again spoke with the CEO in June 2017, by which time he had accumulated over 100 hours TOIL. On 25th May 2017, the CEO told him he was going to extend his probationary period. The Complainant was shocked as there had not been any issues about his work. By letter dated 20th November 2017, the Complainant was notified by the Respondent that his ‘fixed term contract’ was due to expire on 31st December 2017 and that his employment would terminate on that date. It further stated that the results of funding tender were awaited and that he would be invited to apply for the positions available. On 11th December the Complainant was advised by email that there was a decision to cease the position of Manager and recruit a Coordinator and that interviews would take place in January. The new position of Coordinator was in effect renaming the position of Manager and the requirement to re-interview the Complainant was a sham. As it happens the position of Coordinator was never filled, and the position of Manager was advertised twice, the latest expressing to be a fixed term contract up to 31st December 2022. It is argued that while the employment of the Complainant ceased on the expiry of his fixed term contract, the termination of his employment was related to factors other than the expiry of his contract.
|
Findings and Conclusions:
The Respondent in denying that the Complainant was unfairly dismissed relies on the argument that his employment ended by way of the end of his fixed term contract. The exclusion provided in this case in the Act provides as follows: Section (2) (2) (b) “This Act shall not apply in relation to – (a)… (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 the cesser aforesaid”. This subsection permits an employer to avail of a fixed term or specified purpose contract and ensure that the Acts do not apply when the term expires or the purpose ceases. Paragraph (b) provides, however that 4 conditions must be satisfied. The contract must (1) Be in writing (2) Be signed by or on behalf of the employer (3) Be signed by the employee (4) Must provide that the Unfair Dismissals Act 1977 shall not apply to a dismissal consisting only of the expiry of the fixed term or the cesser of the specified purpose. These conditions must be completely satisfied (O’Connor v Kilnamanagh Family Recreation CentreLtd UD 1102/1993). In this case, I note there is no clause in the Complainant’s contract providing the wording at condition 4 above. Therefore the Act applies to the Complainant and I now consider whether he was dismissed fairly or unfairly. From the Complainant’s evidence there were some tensions between the Complainant and his Manager, and there was some threat to extend the Complainant’s probation. The Respondent decided to replace the position of Manager with Coordinator and this involved a downsizing of the Complainant’s job and pay. Instead of communicating and consulting with the Complainant the Respondent took the decision to terminate his employment on the basis that the end of the fixed term contract had come about. However, the contract of employment states that the contracts are subject to annual reviews and subject to performance and funding. I note the short time between notifying the Complainant of the expiry of his contract and the termination of his employment (20th November 2017) and the announcement that there would be a position of Coordinator (11th December 2017) and I find the position of the Respondent in terminating the employment of the Complainant to be therefore somewhat disingenuous. I find there were in fact no substantial reasons for the Complainant’s dismissal and that the dismissal was unfair in the circumstances. I find the Complainant’s complaint to be well founded. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I find that the Complainant was unfairly dismissed. I consider that compensation is the appropriate remedy and I require the Respondent to pay to the Complainant the sum of €7,500.
Dated: 17/01/2019
Workplace Relations Commission Adjudication Officer: Gaye Cunningham