Complainant

Respondent

Anonymised Parties

A Chef

A Hotel

Representatives

Barry O’Mahony B.L. instructed by DAS

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-00027791-001

16/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00027791-002

16/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00027791-003

16/04/2019

The complainant was first employed by the respondent in April 2014. He worked from Easter (approximately) each year until the end of the calendar year.

He is resident in Spain and returns there when his stint in the hotel has concluded.

In 2019 he expected to return to commence work on April 16^th in line with the pattern in previous years and booked flights to return to Ireland.

However, he received a message via WhatsApp from his manager saying that as they had taken on some new chefs he was not required, and that the respondent would be in touch ‘if things picked up’.

He was not given any notice or other process before the termination of his employment.

He also complains that he was not given the statutory statement of his terms of employment or any notice payment.

The respondent makes a preliminary point that the complainant did not, at the time of the alleged termination have the one year’s qualifying service necessary to bring him within the jurisdiction of the Unfair Dismissals Act, 1977.

The complaint was referred to the WRC on April 16^th 2019. The complainant had not worked with the respondent since December 22^nd and only since March 31^st 2018. Therefore, he does not have one year’s service as required by the Act.

The respondent says that the period between the conclusion of the complainant’s work at the end of the year and his re-employment is effectively a period of layoff.

Details were given at the hearing (and revised subsequently) of the pattern of the complainant’s employment.

In 2015 and 2015 the position was not clear, but the complainant commenced in March or April in each year and worked until early January the following year. In 2016 he started on May 24^th (although the respondent was not certain of this), in 2017 on March 15^th and in 2018 on March 31st.

In these last three years he finished up in the days before Christmas.

The communication between the parties when the complainant indicated he was returning was no more than an extension of that lay off period.

The complainant booked his flights and arranged his return to Ireland without any prior consultation with the respondent.

He was not told not to return but only that his return was being deferred until such time as business picked up. The complainant had no right to unilaterally determine the date of his return which varied from year to year.

The failure to provide the statutory statement of the complainant’s terms of employment was an oversight and he was fully aware what the terms were.

As he was not dismissed, he was not entitled to notice.

The respondent makes a preliminary point that the complainant did not, at the time of the alleged termination have the one year’s qualifying service necessary to bring him within the jurisdiction of the Unfair Dismissals Act.

The complaint was referred to the WRC on April 16^th, 2019. The complainant had not worked with the respondent since December 22^nd and only since March 31^st, 2018. Taking that period in isolation that might be true.

However, that period cannot be viewed in isolation.

Looking at the complainant’s pattern of employment it is clear that the start date varied somewhat each year within a relatively limited range.

Cases involving workers who have regular breaks in their employment are not uncommon. They arise in agriculture and horticulture, with certain categories of school employees and, as in this case, in the hotel and catering sector.

I have addressed the issue in ADJ 17565 in a case involving a fitness coach with a professional sports club whose services were not required outside the playing season. In that case he had a number of years with the respondent broken only by the off-season period.

The complainant in ADJ 17565 would meet the manager each year and they would review terms and details of what was expected for the upcoming season.

There was no ‘de novo recruitment process’ each year. As in this case it was quite clear that it was not so much a matter of whether the complainant would continue to work for the respondent but the details of that employment relationship; in the current case when precisely it would start and end.

So, can the complainant here fall to be considered a ‘seasonal worker’ such as those referred to and whose continuity is not disrupted by the natural, seasonal breaks?

As referred to in ADJ 17565, the Labour Court has considered this in Donegal County Council v James Sheridan, Determination FTD185.

Although that case concerned whether a person on several, repeating contracts was entitled to a Contract of Indefinite Duration the Court set out principles which are applicable in this case to deciding whether, having found that the complainant had a contract of service, he had the qualifying service for the purposes of the Unfair Dismissal Act.

In the course of that decision reference is made to another Labour Court Recommendation North Tipperary County Council v SIPTU LCR19685 where the Court in a Recommendation under the Industrial Relations Act recommended that: -

"Workers who have accrued an aggregate of 48 months casual/seasonal employment, where any two periods were not broken by a period in excess of 26 weeks, should be entitled to placement on the panel for an indefinite duration up to normal retirement age.

Later in its own decision in FTD185 the Court addresses ‘Continuity of the Complainant’s Employment’ as follows;

As was pointed out in Revenue Commissioners v Beary while Section 9 of the Act is directed at preventing the unlimited use of continuous fixed-term contracts the objective of the Directive is to combat the abuse of successive fixed-term contracts and the Court must apply the well settled principle of European law that national law must be interpreted as far as possible in the light of the wording and purpose of a Directive so as to achieve the result envisaged by the Directive. In Beary the Court also held that Section 9 is unduly limited in its ambit in that it excludes from the protection of the Act successive periods of employment which are not physically continuous and held that the result plainly pursued by the Directive is to prevent the abuse of “successive” fixed-term contracts. It pointed out that Clause 5.2(a) of the Framework Agreement left it open to the Oireachtas to provide an outer temporal limit beyond which renewed contracts would not be regarded as successive, however, as the legislature chose not to do so, it was not now open to the Court by way of interpretation to import such a provision into the statute.

Having examined the First Schedule to the 1973 Act the Court held that the fundamental effect of the provision is that all periods of employment are to be regarded as continuous unless broken by dismissal or resignation. Hence, successive periods of employment which are not continuous in the literal sense because they are broken by, for example, lay-off or authorised absence, are deemed to be continuous. It is accordingly clear that the word “continuous” as used in the Act has a special meaning which is different to its ordinary or dictionary meaning. As so defined the word can in certain circumstances have a meaning more akin to the ordinary meaning of the word successive.

Therefore, in the instant case, this Court must consider if the Complainant was employed on a series of separate contracts, some of which did not contain a break in service, or whether the periods between contracts can be regarded as lay-offs thus preserving the continuity of the employment within the statutory meaning accorded to that term.

(The underlining emphasis in the second paragraph above has been added)

The Court proceeded to consider the definition of a ‘layoff’ and then concludes; (underlining again added);

In the instant case, having examined the fixed-term contracts which commenced in 2004, the Court is satisfied that on each occasion there was a reasonable expectation of re-employment following termination of the earlier fixed-term contract and/or that the cessation in employment would not be permanent as can be seen from the sequence of the contracts. In this case, the Complainant was drawn from a panel for seasonal or casual work and he was placed back on the panel after each assignment. The Court is satisfied that when the Complainant’s employment was terminated because there was no longer work available for him, it was envisaged at the time of the termination that he would be required again in the future and he was placed on a panel for further temporary work and therefore in such circumstances and in line with Beary, the Court is satisfied that the Complainant’s employment can be regarded as "continuous" within the meaning of the First Schedule of the Minimum Notice and Terms of Employment Act 1973 and for the purpose of Section 9 of the Act. Consequently, even though there were gaps in the Complainant’s employment, including two lengthy gaps due to the moratorium, the Court is satisfied that his employment was continuous.

Therefore, having regard to the nature of the breaks in service in the complainant’s case and the evidence of the parties in relation to the annual renewal I find that there was sufficient continuity in the employment contract to bring the complainant within jurisdiction.

Turning to the substantive issue, given the doubt about hs starting date it is not clear why the complainant made arrangements to return without first checking with the respondent. His assertion that he ‘expected to return to [his] job as usual on April 16^th’ is not borne out by the evidence, in that there had been never been a fixed starting date.

On the other hand, that evidence did show a clear pattern of the complainant returning to work within a range of dates between mid-March and sometime in April (the unreliable 2016 date in May is an outlier).

The WhatsApp correspondence between the parties appears to have begun on April 4^th, following the complainant’s indication of his intention to return.

The respondent’s case that its response was some sort of extension of the lay off period is somewhat disingenuous and not supported by the evidence of the communication between the parties.

The first text sent to the complainant on April 4^th contains the following;

[Name] may have told you that we have taken on a new chef and we are very happy with him. We want to give him a chance to fit in and we’ll see how things work out. As we are not that busy at the moment, we really do not need extra help in the kitchen. Should we get busy in the summer or things do not work out with the new guy we would be delighted to have you back if you were available.

A later message read;

‘As I said if and when things pick up, we will be in touch’ although he was then told ‘if and when it gets busy and you feel you would like to come back we would be happy to have you work here again.

And on April 15^th he was told;

 ‘We do not have work for you at the moment as it is still very quiet.’

and on April 21^st;

‘We do not have work for you here at the moment as it is still very quiet’

The complainant responded enquiring about a redundancy payment.

It does not take any great forensic skill to recognise the import of the language in these communications.

The exchanges referred to do not suggest that this was some generalised discussion about the detail of when the complainant would resume.

Rather, it was that his employment had, in fact, been terminated subject only to the new recruit not working out, or some dramatic increase in business and then that some form of option would present in the future if he wished to ‘come back’ and ‘work here again’.

This is not, as the respondent sought to imply, a deferral of the lay off period. It is quite clear that the complainant had been replaced and this must be seen as the primary reason why there was no work for him to return to around the time he would normally have done so.

There is no question in my mind therefore that this represented a termination of the complainant’s employment and that the dismissal was unfair.

The complainant told the hearing that he had been advised not to look for work as this would damage his chances of making a successful complaint. He even turned down the offer of work as it might damage his case.

The author of this advice has a lot to answer for and demonstrated a shocking ignorance of the requirements of the Unfair Dismissals Act and case law in relation to the requirement to mitigate one’s loss. The fact that the complainant acted on it is very damaging to his case for compensation.

Therefore, his complaint that he was unfairly dismissed succeeds. However, my award takes account of his admitted failure to make any efforts to mitigate his losses in an employment sector where his skills are in high demand and is made on foot of the provisions of Section 6 (a) (ii) of the Unfair Dismissals (Amendment) Act 1993.

I find that he was not given a statutory statement of his terms of employment so his complaint under the Terms of Employment (Information) Act 1994 succeeds.

The respondent’s argument that the failure to provide the statement of his terms of employment required by law was ‘of a trivial nature in that it did not cause harm’ is a rather extraordinary explanation for its failure to meet its legal obligations.

There is no necessity to assess and establish harm done by the failure to comply with employment law in this context and this argument does not excuse the failure to do so. 

Given my finding that he was unfairly dismissed his complaint under the Minimum Notice & Terms of Employment Act 1973 also succeeds.

I uphold complaint CA-00027991-001 under the Unfair Dismissals Act 1977 and award the complainant €1500.00.

I uphold complaint CA-00027991-002 under the Terms of Employment (Information) Act 1994 and award the complainant three weeks pay in the amount of €1800.00

I uphold complaint CA-00027991-003 under the Minimum Notice &Terms of Employment Act, 1973 and award the complainant two weeks pay in the amount of €1200.00.

Unfair dismissal, seasonal workers, Notice, Terms of Employment