Complainant

Respondent

Anonymised Parties

Graduate employee

Local Authority

Representatives

Self

Keith Irvine LGMA

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00021290-001

23/08/2018

The Complainant started work with the Respondent on the 11th of May 2015. Her employment ended on the 1st of July 2018.

When she commenced employment, it was on a two-year fixed term contract as under a Graduate Development Programme. This contract was extended on two occasions by separate six-month contracts, one on the 11th of May 2017 and the following one on the 1st of January 2018.

The Complainant’s case was that her grade remained unchanged throughout the duration of her employment, but the roles she undertook during her second and third contracts were very varied and not of that of a graduate.

She gave examples of compiling the local authorities annual report and managing the returns process for the annual performance indicators.

She explained that she supported switch board operations and attended council meetings on numerous occasions assisting the meetings administrator and recording the minutes.

She also worked on special projects such as the production of the local authority communication plan which was signed off on by the management team.   She was also assigned to deliver in house training for the staff.

She submitted an email from the Director of Services of the Respondent dated 13 December 2017 which was sent in the context of making the business case to extend her second contract by another six-month fixed term contract.   It referred to both the Complainant and another graduate employee. It set out

“…both graduates are responsible for a significant body of work in HR and Corporate and their vacancy will cause significant difficulties in both sections”.

Before the end of her third contract (post two years in employment with the Respondent) the Complainant applied for a redundancy payment. This was denied.

The Complainant relied on the case of Bergin –v- Wicklow County Council (EAT case number RP869/2013).

The Respondent’s case is that the Complainant was employed under a fixed term contract of employment under the Public Sector Graduate Programme.

The facts of the case were agreed between the parties.

The Respondent’s case is that both extensions of the graduate contract were put in place to ensure continuity of the role while the Respondent awaited the conclusion of the second national graduate placement recruitment programme.   This process concluded in June 2018 and as a result no additional contract extension was offered to the Complainant.

The Respondent relied on Section 7 (2) of the Redundancy Payments Acts 1967 as amended for the definition of redundancy and its case was that criteria of Section 7 (2) was not met.

The Respondent relied on the case of St. Ledger –v- Frontline Distributions Limited 1995 ELR 160 wherein the Employment Appeals Tribunal noted that for a redundancy defence to succeed, it must fall within Section 7 (2) of the Redundancy Payments Act 1967. The amended to the original legislation inserted for “reasons not related to the employee concerned”.

The Respondent set out that the provision of “reasons not related to the employee concerned” is clear and unambiguous. Its case was that the dismissal because of the expiry of a fixed term contract does not in itself give rise to an automatic payment of redundancy. It submitted that I was required to satisfy myself that the cessation of employment was for reasons not related to the employee concerned.

It further set out the Complainant was aware that her employment was in a graduate position and that it would be for a fixed period. Its case was that the Respondent ran a graduate programme with several graduates and that upon expiry of their contracts, the Respondent would employ other graduates on the same terms and performing the same duties as the Complainant. Its case was this was what occurred.

The Respondent explained that the Complainant’s employment ceased through the expiry of her contract of employment at the end of June 2018 and another graduate commenced on the 10th of July 2018 and that graduate undertook the same work and responsibilities that were assigned to the Complainant.

It submitted that the cessation of the Complainant’s employment came about by matters relating to her and her contract of employment and she had agreed at the outset that her employment would be for a finite period.

The Respondent relied on the employment appeals case RP 613/2012.   Its case is that when the Complainant’s employment ceased, the work carried out by the Complainant did not cease or diminish or was not expected to cease or diminish. It submitted other graduates continued the work in the same role.

The Respondent also submitted that the Complainant could have reapplied to the Recruitment Scheme and could have been successfully appointed for a second graduate placement. It advised that this had occurred within a different local authority. 

The burden of proof is on the Respondent to prove what took place is not a redundancy situation.

Section 7(2) sets out (with emphasis added)

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if [for one or more reasons not related to the employee concerned] the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

[(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.]

Section 5 of the Redundancy Payments Acts 2003 inserted the words “for one or more reasons not related to the employee concerned” into Section 7 (2) of the Redundancy Payments Act 1967.

In Section 7 (2) paragraphs A and B are impersonal, relating to the requirements of the business. Paragraph C, by its very nature will involve selection or deselection of employees and can be vital in a programme aimed at securing numerical flexibility for an employer. Paragraph D and E are focused on job specifications or on the needs of the business for change.

Change runs through all five definitions. This means change in the workplace. A job is not redundant when it ceases for reasons related to the employee concerned.

In her article Redundancy and Fixed- Term Contracts: All in the Detail, Irish Employment Law Journal 2012, 9(4), 108-111 late Dr. Mary Redmond explored why it had been assumed that termination of a fixed term contract qualified as a redundancy. She set out that this mistaken conclusion derives from the fact that the Redundancy Payments Act 1967 s.9, as amended, which defined the  term “dismissal” as, inter alia, “where under the  contract under which [the employee] is employed by the employer he is employed 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), that  term expires or that purpose ceases without being renewed under the same or similar  contract”. She set out that “dismissal” is similarly defined for unfair dismissals legislation. “But in the same way as an employee whose termination satisfies the definition of dismissal is not ipso facto unfairly dismissed under the Unfair Dismissal Acts, neither does an employee whose dismissal is so defined mean dismissal is for redundancy under redundancy legislation. Definition sections such as these lay down conditions to be satisfied for the application of the statute's substantive provisions.”

She went on to state “I am not saying that all Fixed Term Contracts on termination do not constitute redundancy. I am saying that ……., the question should be asked: is termination for a reason or reasons related to the employee concerned?”.

The question for me is whether the job performed by the Complainant is the same as that which is performed by the graduate that replaced her. If it is and her position was merely temporary, then I cannot find this is a redundancy situation.

Based on the information provided to me I find that the Complainant and her replacement both held their position under a Graduate Student Placement Scheme.   The job or the type of work being carried out by the Complainant as a graduate student was not made redundant. While the Complainant carried out a range of duties in her role which was understandably a flexible role, I don’t accept her role went beyond that expected of a graduate position.

Therefore, I find that the termination of her employment came about because of the coming to an end of her fixed term contract which was personal to the Complainant.

I find that the Complainant was not dismissed because of redundancy within the meaning of the Redundancy Payments Act. The case is not well founded.

Ending of Fixed Term Contract. Redundancy.