LCR22142

• “Under the Claim Reference Number CA-00017324-002, under the Industrial Relations Act 1991 the Complainants contract specifically states during the first six months of the employment that the Complainant is on probation and that the contract can be terminated by either party with one weeks notice. However in the Clause “Termination of Employment” either party may give each other 2 months notice or the minimum required under the Minimum Notice and Terms of Employment Act 1993, whichever is greater on termination of the contract. It would appear to the Adjudicator that the Complainants contract was not terminated for any reason specific to her performance during the period of time while she was employed on probation and I recommend that the Complainant be paid the additional 7 weeks due to her on termination of her employment under the clause of the contract “Termination of Employment”".

This is an appeal on behalf of Limerick Public Participation Network Operations CLG (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00013241; CA-00017324-002, dated 20 September 2018) under the Industrial Relations Act 1969 (‘the Act’). The Adjudication Officer awarded Ms Victoria Ward (‘the Complainant’) seven weeks’ pay in lieu of notice under the Act. The Respondent’s Notice of Appeal was received by the Court on 24 October 2018. The Court heard the appeal in Limerick on 1 November 2019.

The Factual Matrix

It is common case that the Complainant had worked – ostensibly as a self-employed independent contractor - in the role of Project Co-Ordinator for Limerick Public Participation Network Operations (‘LPPNO’), an unincorporated entity, during the entire calendar year of 2017. LPPNO is one of a number of Public Participation Networks (‘PPNs’) that were established throughout the country as collaborations between Local Authorities and local voluntary organisations pursuant to the Local Government Act 2014. Funding for PPNs is provided primarily by the Department of Housing Planning & Local Government and is administered through Local Authorities. The Complainant referred the issue of her employment status with LPPNO throughout 2017 to the SCOPE Section of the Department of Employment Affairs and Social Protection. By decision dated 21 May 2018, the Deciding Officer notified the Complainant that her employment with LPPNO between 1 February and 31 December 2017 was “insurable under the Social Welfare Acts for all benefits and pensions at PRSI Class A …”.

Throughout 2017, the Complainant submits that she, inter alia, facilitated the incorporation of LPPNO and the registration of the incorporated entity (i.e. the Respondent) with both the Revenue Commissioners and the Charities Regulator. In December 2017, the Complainant was offered and accepted the position of Project Coordinator with the Respondent to commence on 1 January 2018. After the Complainant had accepted the offer of employment, an issue arose between LPPNO and the sponsoring Local Authority, Limerick City & County Council (‘the Council’) about future funding. The Council, it appears, advised LPPNO not to enter into any new contracts. LPPNO agreed to this but advised the Council of its pre-existing contractual commitments, including the employment contract agreed with the Complainant. The Council indicated that it was unwilling to transfer the necessary funds to meet the LPPNO’s contractual commitment to the Complainant. However, the LPPNO did not accept this and continued to maintain with the Council that that it had entered into a binding contractual arrangement with the Complainant. The Complainant remained in position and performed her duties as she had been assured by the Respondent’s Directors that her salary would be paid in arrears once the necessary funding had been secured.

The Complainant was informed by telephone on 31 January 2018 that she was been placed on a four-week lay-off. This was confirmed in writing the following day. On 9 February 2018, the Complainant received one week’s written notice of termination to commence on 12 February 2018.

The Dispute

The dispute concerns the interpretation of the written contract of employment furnished to the Complainant in December 2017 but which was not signed by either Party.

There is a probationary clause in the contract which provides as follows:

• “For the first 6 months of your employment, you will be employed on a probationary basis. Your performance will be reviewed during and at the end of 6 months and if satisfactory, your appointment will be confirmed. The Organisation retains the right to extend your probationary period, subject to a maximum probationary period, inclusive of notice, and this will be done following discussions with you. It is hereby mutually agreed that employment can be terminated by either party giving one week’s notice during the probationary period or, in the case of the Organisation, one week’s salary in lieu of such notice”.

• “Notwithstanding the fact that this is a fixed-term contract, the Organisation reserves the right to terminate your employment prior to the expiry of the fixed-term (sic).

  Either party may give to the other 2 months’ notice, or the required minimum notice as outlined in the Minimum Notice and Terms of Employment Acts, 1973-2005, whichever is greater, of termination of the contract, in writing. The Organisation, at all times, reserves the right to pay you in lieu of notice. A lesser period of notice may be acceptable if agreed by both you and the Organisation.

  On termination of your employment, you should return all Organisation property including, but not limited to, correspondence, documents, memoranda, object and source codes, credit cards, keys mobile phones, and other property of the Organisation which may be in your possession.”

The Respondent submits that the notice period of two months, as provided for in the Termination of Employment clause, only applied after the expiry of the probationary period. In support of its submission it cites “the nature of the position, the manner in which the employee was recruited and the voluntary nature of the employer organisation”.

The Complainant’s Submission

The Complainant submits that the probationary clause has no bearing on her situation as the decision of the Deciding Officer in SCOPE must be construed as meaning that she had been employed on a contract of service, albeit with the Respondent’s predecessor, for a period in excess of six months prior to her dismissal by letter dated 9 February 2018. The only notice provision relevant to her in those circumstances she submits is that set out in the Termination of Employment clause quoted in full above.

Discussion and Decision

The Court is not bound by the decision of the Deciding Officer which is made in the context of the application of the Social Welfare Acts only. However, the Court finds the decision highly persuasive. In addition, the Court takes the view that it is not appropriate for an employer to impose a probationary period in a contract of employment issue by an employer to an individual who has already been in that employer’s employment for a period as long as the Complainant had been in the Respondent’s employment immediately prior to 1 January 2018.

Having regard to the Parties’ submissions and for the reasons referred to previously, the Court finds that the Complainant was entitled to a further seven weeks’ notice of termination of her employment, or payment in lieu thereof, under her contract of employment and directs the Respondent to compensate her accordingly.

In the event that the Respondent does not have the funds to hand in order to comply with this Decision it should make every reasonable effort to secure the necessary funding in the short term from the Council.

The Court so decides.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
29 November, 2019Deputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.