ADJ-00016389

Complainant

Respondent

Anonymised Parties

An Employee

A Local Authority

Representatives

P. Tiernan & Co, Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00021240-001

20/08/2018

The complainant had been employed on a job activation scheme on January 25th, 2016. He was subsequently employed on a fixed term contract from August 28th, 2017 to December 27th, 2017.

This was further extended by six months to June 26th, 2018, following which he continued to be employed on a week to week basis until August 24th when his employment was terminated. This followed an assessment of his performance and general consideration of his record with the respondent.

There had been an incident and a final written warning warning in 2016 and another in November 2018 when the complainant sought a transfer away from a co-worker with whom he had a serious disagreement. This resulted in a written warning.

The assessment of his performance had been submitted to the HR Department on three separate forms between December 2017 and August 2018.

He was interviewed on April 25th, 2018 and this resulted in the extension of his contract in order to further review his performance.

There was an incident on April 20th involving the complainant and a co-worker, but it was made in clear to an investigator that neither of the only witnesses to the incident wished to give evidence or corroborate the complainant’s complaint.

This did not result in any sanction, but the investigator referred the matter on June 14th for consideration by the HR department in the context of the complainant’s review due in August. The complainant appealed this decision, and this was considered on July 5th 2018 and resulted in the complainant and the co-worker with whom he had the dispute being assigned to separate work areas.

Overall, his disciplinary record over the course of his employment had been unsatisfactory. He was given due notice of all disciplinary meetings and accorded rights of representation, with the outcomes being sent to him in a timely manner. He was always put on notice of the likely sanctions.

Accordingly, the termination of his employment was not unfair.

On April 20th the complainant was the subject of a serious threat by a co-worker, which was then followed by further intimidating acts by that co-worker’s family.

He says that his life was threatened.

He took some sick leave and on his return to work requested a transfer away from the co-worker referred to above.

He says the termination of his employment on August 16th was a response to his having advised the respondent three days earlier that he was going to report the above incident to the Gardai.

The complainant’s contractual status is complicated.

He was initially employed on a job activation scheme in January 25th, 2016. He was subsequently employed on a fixed term contract from August 28th, 2017 to December 27th, 2017.

This was further extended by six months to June 26th, 2018, following which he continued to be employed on a week to week basis until August 24th when his employment was terminated.

The respondent says this followed an assessment of his performance and general consideration of his record with the respondent. In fact, at the time of the termination the complainant was on a series of weekly contracts.

The respondent referred to three assessments which had been submitted in writing to the HR department between December 17th, 2017 and August 6th, 2018.

These were scanty enough documents and much less substantial than the respondent made them sound, but probably sufficient for their intended purpose.

The first of them followed a final written warning issued some weeks prior which was due to last six months. But it reported some improvement in the complainant ‘s performance.

Indeed, in the April 2018 review the complainant was deemed to have been successful ‘in relation to attendance and performance’.

Oral evidence was given by his supervisor, who had made the assessment, and it appeared to roll back in relation to the assessment of performance and attendance on the form, and imply that things had not been as they seemed, in particular with a recommendation that HR should interview the complainant ‘and explain to him that he needs to be more productive in general’.

In addition, in response to a question on the form about extending the complainant’s contract the supervisor had replied ‘only until August 2018 (to be reviewed).’

The HR department did interview him and decided that his contract should continue to run but on a week to week basis.

On April 20th the entirely unrelated incident took place, referred to above in the complainant’s statement which involved an angry dispute with a co-worker followed by further alleged acts of intimidation by that co-worker’s family.

The respondent investigated the incident, and while it concluded that there had been a breach of discipline (by both parties) it did not recommend any action beyond that it should be considered as part of the complainant’s next performance review in August.

The complainant appealed this but was unsuccessful, but the complainant and the other party to the April 20th dispute were assigned to separate work areas.

While the complainant made much of the link between the April 20th incident and what followed I do not find any link between the two.

In addition, there was a degree of evidence that the complainant was not entirely totally innocent in relation to this incident. There was no corroborating evidence or, such as there was, supported that view; i.e. that both parties were at fault.

Further the complainant had failed to provide any grounds of appeal when he appealed the finding of a breach of discipline. (neither did he report the matter of the alleged threats to the Gardaí as he said he would).

In the event, he received a letter on August 15th confirming that his contract, which by then was on a week to week basis, was not being renewed.

I must first of all look at whether the Unfair Dismissals Act applies.

As noted the complainant was on a fixed term contract which expired in accordance with its terms. Those terms were accepted by the complainant or at least he did not demur when the contract was extended on that basis.

In the circumstances, the Act will not apply subject to a number of conditions.

These are that;

There be a written contract,

That it be signed by both parties,

It contains a statement that the Act shall not apply to a dismissal consisting only of the expiry of its terms.

The last contract signed by the complainant (or at least submitted in evidence) was on August 26th, 2017 which was to run until December 27th. This was extended twice; the first to run to June 26th, and thereafter on a weekly basis. Clearly the terms were continued into the extended contracts and they meet the requirements set out above.

On this basis, I find therefore that the Unfair Dismissals Act does not apply to the complainant’s circumstances and his complaint fails.

For the reasons set out above I do not uphold complaint CA-00021240-001 and it is dismissed.

Constructive unfair dismissal.