ADJ-00017177

Complainant

Respondent

Anonymised Parties

Chief Executive

Statutory Agency

Representatives

Reddy Charlton Solicitors

Mairead McKenna BL instructed byByrne Wallace 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-00022234-001

28/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00022234-003

28/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00022234-004

28/09/2018

The Complainant was employed as Chief Executive of the Respondent on a fixed-term contract from 10^th April 2013 until 10^th April 2018.  She has submitted a complainant under the Unfair Dismissals Acts in relation to the termination of her contract.  She has also submitted complaints alleging penalisation and less favourable treatment under the Protection of Employees (Fixed-Term Work) Act, 2003.

The Respondent submits as follows:

The Complainant was not unfairly dismissed. The Complainant commenced employment with the Respondent as its Chief Executive on the 10th April 2013 and pursuant to the terms of a fixed term contract. The terms of this contract are in writing, were signed by the parties and provide that the duration of the term is for a period of 5 years.

The contract expressly provides that the provisions of the Unfair Dismissals Act 1977-2007 shall not apply to a dismissal consisting only of the expiry of the term of the agreement. The Complainant's claim for unfair dismissal cannot proceed. Section 2 (2)(b) excludes dismissal where the employment was under a contract of employment for a fixed term and the dismissal consisted only of the expiry of the term without its being renewed under the contract where such contract is in writing, signed by or on behalf of both the employer and employee and provides that the 1977 Act shall not apply to a dismissal consisting only of the expiry aforesaid.

Here the contract of employment was signed by the Complainant and the Respondent. As such the provisions of section 2 (2)(b) apply to this contract and the Complainant's claim for unfair dismissal cannot proceed. The terms of section 2(2)(b) have been fully met in this case and as such, there is a statutory bar to this claim proceeding.

It is also important to note that there is no requirement in a section 2(2)(b) contract that the terms of the contract are specifically brought to the attention of the employee. It is accepted that there may be such a requirement if the employee had a permanent contract but no such obligation arises herein.

Strictly without prejudice to the foregoing the Respondent did not treat the Complainant unlawfully. She was not penalised by virtue of being a fixed term employee. There is no question of the Respondent acting so as to avoid a contract of indefinite duration.

The termination of the Complainant's employment arose due to the natural effluxion of time and in circumstances where the contract had reached its natural end. The Complainant was alerted in writing to the fact the contract was expiring and the Respondent's letter of the 9^th March 2018 is relevant in this regard. The letter states:-

"I am writing to remind you that your contract of employment with [the Respondent] is due to expire on 10 April 2018. The position of Chief Executive will be advertised shortly by open competition through the Public Appointments Service. If you are interested in applying for the position, it will be advertised on publicjobs.ie in the coming weeks. Any outstanding annual leave entitlements will be paid to you on the 19 April 2018. On behalf of the Board I wish to acknowledge your contribution during your tenure as Chief Executive of [the Respondent] and I wish you well for the future. "

It is the position of the Respondent that the Complainant well knew the terms of her contract of employment and the fact it was due to end on the 10^th April 2018. It is acknowledged that the Complainant was absent from work on a period of sick leave from the 25^th July 2017. The Complainant was fairly treated while on sick leave and received sick pay in excess of her strict legal entitlements under the Public Service Management (Sick Leave) Regulations 2014.

It was confirmed to her in writing by letter dated 9^th March 2018 that her employment was terminating on the 10^th April 2018. This was due to the clear terms of the Complainant's contract of employment and the natural expiry of the 5 year term of employment contracted for by the parties.

While it is contended by the Complainant that the contracts of "all staff" whose contracts were due to expire had their contracts renewed as specified purpose contracts, this is neither accurate nor relevant to the issues raised by the Complainant. The Complainant was employed as the Chief Executive of the Respondent pursuant to a 5 year fixed term contract with a natural expiry date of the 10^th April 2018 which the Respondent is entitled to rely on. The Complainant was not a regular member of staff; she was the Chief Executive who had a clear 5 year term and accordingly it was both fair and appropriate that her employment terminate at the end of the term. There was no arrangement, assurance or representation made to the Complainant that she would 'lead the organisation' until its project was completed. As such the Complainant cannot be said to have had a legal expectation in this regard.

Furthermore, the issue of the Complainant's sick leave is not relevant to the determination of her contract of employment. The Complainant's sick pay entitlements were fully honoured. The fact the Complainant was on a period of sick leave prior to the termination of her employment by reason of the natural effluxion of time was not a relevant factor considered by the Respondent. It was not a factor the Respondent was aware of at the time of the contract entered into by the Complainant and the Respondent which, as stated above, had a clear fixed term.

The Complainant was not unfairly treated by the Respondent. Her employment with the Respondent came to an end by virtue of the cessation of the fixed term contract under which she was employed.

Relevant case law  

The Respondent places significant reliance on the provisions of section 2(2)(b) of the Unfair Dismissals legislation. It is submitted that as a matter of law the Respondent is entitled to rely on the section 2(2)(b) clause and the impact of this clause is that it excludes the Complainant from pursuing her application for unfair dismissal. The Respondent relies heavily on a recent decision of the Labour Court in Malahide Community School v Dawn-Marie Conaty, Determination No. UDD1837.

The Respondent submits that the Employment Appeals Tribunal and more recently the Workplace Relations Commission have made it clear that in order for a Respondent to successfully rely on the terms of section 2(2)(b) all of the provisions of the section must be intact. In this regard, the decision of Sheehan v Dublin Tribune Ltd [1992] ELR 239 and O'Connor v Kilnamanagh Family Recreation Centre Ltd, UD 1102/1993 are of relevance.  The Respondent submits that all of these factors are intact in the instant case and the Respondent submits it is entitled to rely on the section and must be given the benefit of this section.

The Complainant submits as follows:

The Complainant was unfairly dismissed from her role as Chief Executive.

The Complainant contends that the provisions of section 2 (2)(b) of the Unfair Dismissals Acts 1977 to 2015 (‘the Acts’) were not specifically drawn to her attention as is required.

It is submitted that the inclusion of this clause in the contract was wholly or partly for, or was connected with, the purpose of avoidance of liability under the Unfair Dismissals legislation.  Accordingly, this waiver does not apply and the Complainant is eligible to bring her complaint under the Acts. The onus falls on the Respondent to justify her dismissal.

It is submitted that there were no substantial grounds justifying the Complainant’s dismissal. The Complainant was never informed of any performance issues or any problems whatsoever with her conduct as CEO. Her understanding was that she was performing the role extremely well and never received any feedback otherwise, either from the Board who she reported to regularly, or from the Chairman directly. Her expectation was always that she would remain as CEO until such time as the project for which the Respondent was established was completed.

It is denied that the Complainant expected that her employment would be terminated.  The Complainant is aware that all staff whose contracts were due to expire had their contracts renewed, as specified purpose contracts.  The Complainant personally carried out the renewal of her colleagues’ contracts following instruction from the Board. The Board had designed a strategic plan for the organisation and this was due to run until the end of 2019. It is fundamentally inaccurate to suggest that the Complainant did not expect to remain on as Chief Executive.

The Complainant’s expectation was that she would continue to lead the organisation until the project was completed. A recruitment drive was held in 2016 and new staff were hired on specified purpose contracts to prepare for this.  The end dates of the contracts of employment of the Complainant and indeed the collective team, are inextricably linked with the completion of the project.  Accordingly, the Complainant always held the legitimate expectation that her contract would also be renewed automatically, in line with the extension of the project. Any other interpretation of the Complainant’s employment situation is illogical and unfounded.

The Complainant was shocked, after no contact from the Chairman, to be informed by letter that her contract not being renewed. She was not advised in person that she was being dismissed. Accordingly, she was never given an opportunity to make representations in relation to potential alternatives to the termination.

Prior to her termination, no contact was made by the Chairman. She was not invited to a meeting to discuss her role, despite that the fact that there was and remains, a continuing need for a Chief Executive.

It is evident that no proper or fair process was carried out by the Respondent. No alternatives to her dismissal were explored and she was not consulted with in any way.  The position of Chief Executive is a continuing and is a core function of the Respondent and part of its fixed needs. 

The Complainant was not provided with a letter setting out the basis on which it had been decided that her role was being terminated, all that she was told was that her contract had expired.   It appears that no decision making process was applied in regard to the decision to terminate her employment.  The Complainant attempted to clarify this process through her solicitors and she received no response.  No evidence was provided by the Respondent to justify the Complainant’s termination. 

The Complainant was not given the opportunity to appeal the decision. It is evident that the Respondent did not comply with the principles of natural justice and fair procedures.

The Complainant submitted the following precedents in support of her complaint: Clare County Council v Power FTD0812 and The Teaching Council v Kirwan FTD1225.

In their written and oral submissions in support of the herein claim, the Complainant’s representatives relied heavily on the provisions of the Act under which the Respondent organisation was established.  For the avoidance of any confusion, I reminded the parties at the hearing that I do not have jurisdiction under that Act.  My investigation and findings, therefore, are confined solely to the acts under which I do have jurisdiction and my decision in relation to the herein claim is made under Unfair Dismissals Acts.

Relevant Legislation

section 2 (2)(b) of the Unfair Dismissals Acts provides that the provisions of the Unfair Dismissals Acts shall not apply to:

“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 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.”

The matter for me to decide, therefore, is whether the Respondent is entitled to rely on the exclusion provided under section 2 (2)(b) of the Unfair Dismissals Acts in defence of this claim.

In order to reach a decision, I will first examine each provision of section 2 (2)(b) of the Acts as they relate to the Complainant’s contract.

The first requirement of section 2 (2)(b) of the Acts is that the contract of employment is for a fixed term.  In this regard, I note that the Complainant’s contract explicitly states that “the employment of the Chief Executive, on this fixed term contract  (my emphasis) shall commence on 10 April, 2013 and shall continue until 10 April, 2018”.  I find, therefore, that the first requirement of section 2 (2)(b) of the Acts has been met.

Dismissal consisting only of the expiry of the fixed term  

The second requirement of section 2 (2)(b) of the Acts is that the dismissal consisted only of the expiry of the term without its being renewed under the said contract.  In this regard, I note the Agency’s letter of 9^th March 2018 to the Complainant regarding the termination of her employment in which the Chairman wrote as follows:

Dear [Complainant]

I am writing to remind you that your contract of employment with [the Respondent] is due to expire on 10 April 2018. The position of Chief Executive will be advertised shortly by open competition through the Public Appointments Service.  If you are interested in applying for the position, it will be advertised on publicjobs.ie in the coming weeks.”

I find, therefore, that the second requirement of section 2 (2)(b) of the Acts has been met.

I find that the Complainant’s contract with the Respondent is in writing and is signed by both parties, thereby fulfilling the third requirement of section 2 (2)(b) of the Acts.

Explicit exclusion of the provisions of Unfair Dismissals Acts in the contract  

In this regard, I note that section 1.4 of the Complainant’s employment contract with the Respondent provides that “the Unfair Dismissals Acts 1977 to 2007 shall not apply to a dismissal consisting only of the expiry of the terms of this Agreement. 

I find, therefore, that the final requirement of section 2 (2)(b) of the Acts has been met.

I note the Complainant’s submission that this final clause was not drawn to her attention as is required.  Frankly, I am at loss to understand this submission as there is no such requirement under section 2 (2)(b).  In any case, I am of the view that an individual of the undoubted experience and calibre of the Complainant should not need to have the terms of her contract drawn to her attention.

I will now examine the precedents submitted by both parties to see if they are determinative in my decision making.

Precedents submitted by the Respondent  

I note that in Sheehan v Dublin Tribune Ltd [1992] ELR 239 and O'Connor v Kilnamanagh Family Recreation Centre Ltd, UD 1102/1993, the EAT was very clear that in order to rely the provisions of section 2 (2)(b) of the Acts in defence of a claim for unfair dismissal by the holder of a fixed-term contract, all (my emphasis) of the provisions of section 2 (2)(b) of the Acts must be met in full. 

I find in the herein claim all of the provisions of section 2 (2)(b) of the Acts have been met in full.

I am also persuaded by the findings of the Labour Court in Malahide Community School v Dawn-Marie Conaty, Determination No. UDD1837 where prior to making a finding against the Respondent, the Chair stated:

"Before considering in detail the issues remitted by the High Court for further consideration it is appropriate to state that this Court fully accepts that as a general principle where the conditions specified therein are fulfilled, section 2(2)(b) of the Act operates so as to exclude the application of the Act to a dismissal that consists only of the expiry of a fixed term or fixed purpose contract without its renewal. However, the facts of the instant case are substantially and materially different to those normally encountered in the generality of cases in which section 2(2)(b) are relied on as a defence. "

Precedents submitted by the Complainant  

I find that the precedents submitted by the Complainant are not analogous to the situation that pertains in the herein case as both precedents relate to situations where the Complainants were employed on fixed-term contracts which were renewed on a number of occasions unlike the Complainant in the herein case who was only employed on one fixed-term contract which was not renewed.

I find that this complaint is not well founded.

The Complainant submits that she was penalised by the withdrawal of her salary while she was absent on sick leave.  She also submits that she was denied Critical Illness Benefit to which she was entitled.

The Respondent submits that the Complainant exhausted her statutory entitlement to paid sick leave and, in fact, she received six months full pay which is in excess of her strict legal entitlement under the Public Service Management (Sick Leave) Regulations 2014. 

The Respondent also submits that the Complainant did not meet the criteria for entitlement to Critical Illness Benefit.

In their written and oral submissions in support of the herein claim, the Complainant’s representatives have relied heavily on the provisions of the Act under which the Respondent organisation was established.  For the avoidance of any confusion, I reminded the parties at the hearing that I do not have jurisdiction under that Act.  My investigation and findings, therefore, are confined solely to the acts under which I have jurisdiction and my decision in regard to the herein claim is made under the Protection of Employees (Fixed-Term Work) Act 2003.

Having considered the submissions of both parties and the evidence adduced at the hearing of this complaint, I find that the Complainant exhausted her sick leave entitlement and that she was not eligible to avail of Critical Illness Benefit under the terms of the scheme.

I find, therefore, that this complaint is not well founded.

I find that this complaint is not well founded.

The Complainant submits that, contrary to section 10 of the Protection of Employees (Fixed-Term Work) Act 2003, she was not informed and given the opportunity by the Respondent to apply for the position of Chief Executive which still exists and is not redundant.

The Complainant submits that she should have been informed and given an opportunity to apply for that position.

The Respondent contends that the Complainant has failed to identify what opportunities for a permanent appointment were denied to her during her period of employment with the Respondent.

In their written and oral submissions in support of the herein claim, the Complainant’s representatives have relied heavily on the provisions of the Act under which the Respondent organisation was established.  For the avoidance of any confusion, I reminded the parties at the hearing that I do not have jurisdiction under that Act.  My investigation and findings, therefore, are confined solely to the acts under which I have jurisdiction and my decision in regard to the herein claim is made under the Protection of Employees (Fixed-Term Work) Act 2003.

I note that in their letter of 9^th March 2018 to the Complainant informing her that her contract was due to expire, the Respondent advised the Complainant that the position of Chief Executive would be advertised shortly by open competition through the Public Appointments Service (PAS).

The Respondent informed the hearing that subsequent to their letter of 9^th March 2018, it transpired that PAS were not in a position to assist them with the recruitment of a CEO and, accordingly, the recruitment process did not commence until after the Complainant’s contract had expired.   I find, therefore, that the Respondent would not have been in a position to afford the Complainant the opportunity to apply for the position of Chief Executive during the tenure of her employment with them.

Accordingly, I find that this complaint is not well founded.

I find that this complaint is not well founded.

Unfair dismissal – provisions of section 2(2)(b) concerning the expiry of fixed-term contracts.  Fixed-term contract – penalisation and less favourable treatment