Complainant

Respondent

Anonymised Parties

A Medical Professional

A Public Health Service Provider

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00029158-001

19/06/2019

The Complainant was initially employed by the Respondent on a fixed term contract from the 11th July, 2016. His complaint is that he was unfairly dismissed with effect from the 13th June, 2019. The complaint was received by the WRC on the 19th June, 2019. The Respondent has denied the complaint on the basis that the Complainant’s fixed term contract expired and came to a natural end.

In accordance with Section 6(1) of the Unfair Dismissals Act [1977-2017], the Respondent outlined its position that it had not unfairly dismissed the Complainant. The Respondent stated as follows:

·         That the Complainant was employed by the Respondent as an Associate Specialist on a series of one year fixed term contracts from 11 July, 2016 to 7 July, 2019;

·         That a decision was made not to issue a further contract after 7 July, 2019 based on service adjustments and requirements within the Respondent;

·         That the decision not to renew the Complainant’s fixed term contract was communicated to him verbally at a meeting with management and also in writing on 12 June, 2019.

The Respondent outlined that from November 2017 there were on-going internal discussions at various levels within the Respondent about its service requirements and about increasing staffing in certain departments. The Respondent stated that its objective was to bolster its on call roster, mitigate against an identified risk in the provision of its service and maximise patient outcomes.     The Respondent provided a detailed outline of these discussions and the various proposals considered including the business cases it had submitted for increased staffing. The Respondent stated that its submissions in this regard had not been approved at national level with its last application returned unapproved on the 14th March, 2019.

The Respondent stated staffing within the Complainant’s department is managed in conjunction with the Head of the department. The Respondent stated that the majority of its intake of new posts happens in July. The Respondent also stated that it was constrained by pay and affordability measures in the public service and that it was against this background and in the context of maximising patient outcomes and improving safety, that the decision was made to suppress the Complainant’s position which decision it stated, was not taken lightly.

In relation to the matter of a complaint against the Head of department which the Complainant had submitted on the 30th May, 2019, the Respondent maintained this was a separate matter and that this complaint was dealt with in accordance with the Respondent’s normal complaint procedures and fair procedures. The Respondent stated that the making of this complaint by the Complainant had no bearing on its decision to suppress the Complainant’s fixed term contract. In that regard, the Respondent stated that it provided the Complainant with a full explanation and response to his complaint by email on the 6th June, 2019 and that it invited a reply from the Complainant but did not receive any.

It is the Respondent’s position that it always complied with its obligations under the Protection of Employees (Fixed-Term Work) Act [2003-2017], that the Complainant was not entitled to a contract of indefinite duration, that the Complainant’s fixed term contract was fully honoured and that there was no unfair dismissal as the contract came to a natural end.

The Respondent provided copies of various documentation including the following:

·         Copy of the Complainant’s first fixed term contract signed on 26/5/2016 - approx 19 pages - which outlined the Complainant’s salary and terms and conditions of employment and contained the following clause at paragraph 1(a) - “Purpose and Commencement Date”:

“This is a contract of employment between [the Complainant] and [the Respondent]. [The Complainant] is appointed to the post of a Associate Specialist with effect from the 11.07.2016 – 09.07.2017. The Contract is

for a fixed term/purpose as follows: until 09.07.2017.

Should the contract be for a fixed term, the Unfair Dismissals Act, 1977 – 2001 shall not apply to the….dismissal consisting only of the expiry of the contract on a specified date….”.

·         Copies of various papers in relation to staffing, rotas and service provision within the Respondent including copy of the business cases which sought funding for two new positions;

·         The Complainant’s complaint against the Head of department of the 30th May, 2019;

·         Copy of email from the Respondent’s Manager to the Complainant of 30th May, 2019 which stated – “I refer to our meeting of the 29th May and as stated at that meeting I will forward your revised complaint to [Head of Department] for his reply”;

·         The reply of the Head of Department dated 4th June, 2019 and email from the Head of the 5th June, 2019;

·         Copy of email from the Respondent’s Manager to the Complainant of the 6th June, 2019 enclosing the Head of Department’s reply and stating “I refer to my email [of 30 May] and to our meeting of 29th May. I have attached [Head of Department’s] reply to the grievance set out in your email…..of 30th May and I would be grateful for your feedback concerning his reply”;

·         Copy of email from the Respondent’s Manager to the Head of department of the 10th June, 2019 which stated as follows:

“I refer to the attached emails and the meeting of 6th June……at which we discussed the ongoing difficulties with the …..Roster. As you are aware we had submitted a business case…..to get 2 additional….posts approved which would allow the….Roster to be revised for the July intake. To date we have been unable to get approval for these posts…..We cannot increase our…..staff complement nor can we increase payroll costs so the only option available to us is to review the use of current resources…..The proposal to suppress the….Associate Specialist [post] and recruit 2 additional Senior [persons] for the July intake would allow the revised…..Roster to be put in place. To proceed with this I would have to inform the….Associate [Specialist] that [his contract] cannot be renewed as the [post is] being suppressed. Can I confirm that you have discussed this with your…..colleagues and that they are in agreement with this proposal”

·         Copy of Head of department’s response of the 10th June, 2019 which stated: “I can confirm that I have discussed this with all my colleagues and we are all in agreement to proceed…..”

·         Copy of letter to the Complainant from the Respondent’s Manager of the 12th June, 2019 which stated:

“At our meeting of 12th June I outlined changes to…..staffing that are considered essential to ensure that we can put a revised….roster in place for the July intake.

Following a review of the ….staffing structure it has been decided in the interest of optimal service delivery to increase the Senior…..complement by two and to suppress the…..Associate Specialist [post]……Suppression of the Associate Specialist [post] is necessary as we are not permitted to increase our current…….staff complement…..

Regrettably, we are not therefore in a position to renew your contract as Associate Specialist from the July 2019 intake as this post will no longer be part of the approved staff complement.

The two Senior…..posts will be advertised on the …..website and you are of course welcome to apply for these posts.

I would like to thank you for your service……”.

The Complainant stated that he was employed as an Associate Specialist by the Respondent on 11 July 2016. He stated that whilst working for the Respondent he was operating at a very senior level. The Complainant stated that he made a complaint about the Head of department to the HR and General Manager of the Respondent on 30 May, 2019. The Complainant stated that the relevant department within the Respondent did not call him for an explanation of his complaint and that his complaint was not fairly examined or assessed.

The Complainant stated that he had been working in the department of the Respondent for three years. He stated that he was told by the Head of department in March 2019, that the department had approved his contract of indefinite duration (CID) from July 2019 and that the Head had communicated this to the Respondent’s HR department. The Complainant stated he was therefore expecting to sign his indefinite contract in June 2019 but he stated that “…..after the incident of complaint my post was dissolved”. The Complainant stated that a unilateral decision was made by the Respondent to suppress his post and that this was in response to his complaint. The Complainant maintained that contrary to what the Respondent had stated, he had not heard about any discussions or re-arranging of posts due to safety concerns. The Complainant stated that the purported justification of the Respondent for the suppression of his post was a “whole story made up retrospectively after the complaint”.

The Complainant stated that if it was planned to suppress his post, advertisements would have been placed in February 2019 and not as late as June 2019.

The Complainant stated that he was called by the Respondent’s Manager on the 12th June, 2019 and advised that the relevant department within the Respondent had decided to dissolve his post and hire two new medical professionals at a different level. The Complainant viewed the re-organisation of his post as a demotion and therefore did not apply for the new posts advertised by the Respondent in June 2019.

The Complainant stated that his last day of work in the Respondent was the 27th June, 2019, that he was out of work for two weeks and since then, he has taken up a position in the UK. The Complainant outlined the impact of what occurred on him and his family, that he considered he was punished for making a complaint, that he had suffered mental stress as a result and had to move his family to the UK after living in Ireland for some 19 years. that The Complainant stated on his Complaint Form that he was seeking re-instatement.

The parties were afforded the opportunity to examine and cross examine each other’s evidence. I also questioned the parties. Arising from these exchanges I noted the following clarifications:

·         The Head of department where the Complainant worked changed in or around May 2019;

·         The Complainant’s complaint was against the new Head – who took up the role after May 2019.

·         According to the Complainant, the promise of a CID to him in March 2019 was made by the previous Head of department;

·         The Respondent outlined its submission that whilst “at that point in time [March 2019] ….the objective may have been to extend [the Complainant’s] contract and thus qualify the claimant in terms of tenure for a CID” - the Head of department did not have the autonomy to issue such a contract as this would require approval from its manpower section which had overall responsibility for staffing and management of services;

·         The Complainant did not recall any meeting with the Respondent’s Manager on the 29th May, 2019 although this was referred to in the Respondent’s emails to the Complainant of the 30th May and 6th June, 2019;

·         The Complainant maintained that if the new posts were to start on the 7th July, 2019 – the advertising process would have had to be completed in under one month – which he maintained was highly unusual;

·         The Respondent maintained that it had issued contracts to the Complainant for the employment periods 2017/2018 and 2018/2019 and this was disputed by the Complainant.

At the adjudication hearing, I sought full, completed and signed copies of the Complainant’s fixed term contracts from 2017 to 2019. The Respondent’s HR Manager emailed the WRC on the 19th February, 2020 with the following:

·         Copy of the first contract which was signed by the parties on 19/5/2016 and 26/5/2016 respectively. This contract stated at paragraph 1 titled “Purpose and Commencement Date” that the contract was effective from 11/07/2016 – 09/07/2017 and that “….the Unfair Dismissals Act, 1977 – 2001 shall not apply to the NCHD’s dismissal consisting only of the expiry of the contract on the specified date.”;

·         Copy of a 19 page Fixed Term Contract which stated on the front page “As of 30th June 2017” which was not signed by either party. This contract stated at paragraph 1 titled “Purpose and Commencement Date” that the contract was for 12 months with effect from 09/07/2018 and that “….the Unfair Dismissals Acts, 1977 – 2015 shall not apply to the NCHD’s dismissal consisting only of the expiry of the contract on the specified date”; and

·         Copy of the advertisement for two new Senior Registrar posts within the Respondent which were commencing from the 8th of July 2019.

I wrote to both parties on the 6th May, 2020 seeking clarification on whether there were signed written contracts for the 2017-2018 and 2018-2019 periods and requested copies. I asked the parties to set out their respective positions on the matter of the contracts - with particular reference to the last contract which was effective from 09/07/2018 – and I advised the parties that “as the contracts contain an exclusion clause regarding the applicability of unfair dismissals, I [would] be considering this matter in the context of Section 2(2)(b) of the Unfair Dismissals Act [1977-2017]”.

The Respondent and Complainant replied to my communication of the 6th May, 2020. In that regard, in an email of the 15th May 2020, the Respondent advised as follows:

“I note the letter dated 06.05.20 from the WRC……states that the contract for the period July 18/19 was not signed by either party. It would not have been possible for us to sign this until the contract was returned to us signed by [Complainant]. The copy we provided was our file copy, the original was sent to [Complainant] to return to us. [Complainant] was reminded by us every time he called to the HR Office….to return his contract. We have copied everything that was on file in relation to [Complainant] and there is no contract for the period July 17/18 on file. This is not to say [Complainant] didn’t take it from the office but failed to return it but this is impossible to confirm”

The Respondent also stated in its email of the 15th May 2020 that “….the [Respondent is]….not in a position to furnish the WRC with signed copies of contracts as said contracts were not returned signed…..by [Complainant]”

In emails of the 10th and 19th May 2020, the Complainant advised:

“As I mentioned at the adjudication hearing…[Respondent] never issued the contract for 2018-2019. The only contract which was signed by [Respondent] and me on 19/05/2016 and 26/05/2016 respectively and it was my first contract. I never received any contract effective from 09/07/2018 for 12 months…….I have never signed any contract effective from 09/07/2018 and exclusion clause of unfair dismissal would not be applicable in my case”

“As I mentioned before that the contract for the year 18/19 was never issued to me. When I asked….for the copies of….all three contracts, she…..came back to me and gave me the whole contract for year 16/17 and half of pages of contract for year 17/18. When I asked for the contract for the year 18/19, she replied that it is not there in my file. It is an absolute misinformation that the contract for the year 18/19 was given to me and I did not return. It was never given to me, even when I asked For it after the incident of dissolution of my post”

In the first instance, I wish to consider the matter of the Complainant’s fixed term contracts. In that regard, Section 2(2)(b) of the of the Unfair Dismissals Act [1977-2017] provides as follows:

“Subject to subsection (2A), this Act shall not apply in relation to-

(b) 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 of 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”.

There is no dispute between the parties that the Complainant’s first contract which was for the twelve month period 11/07/2016 – 09/07/2017 was signed by the parties on the 19th and 26th May, 2016. However as was evident from the exchanges at the adjudication hearing and from the emails received afterwards, there is considerable conflict of evidence in relation to the provision/receipt of contracts for the subsequent employment periods – ie 2017/2018 and 2018/2019. The copy contract which I received from the Respondent (after the adjudication hearing) on the 19th February, 2020 was stated to be for the 12 month period effective from 09/07/2018 and this contract also contained the phrase that “….the Unfair Dismissals Acts, 1977 – 2015 shall not apply to the…. dismissal consisting only of the expiry of the contract on the specified date”. However, this contract was not signed.

Following my communication with the parties of the 6th May 2020, the Complainant stated that the first contract for 2016/2017 year was the only contract which he signed and that he never received any contract for the 2018/2019 employment period. The Respondent stated that contracts were issued to the Complainant but not returned and that it was not in a position to furnish the WRC with signed copies of contracts.

Section 2(2)(b) of the Unfair Dismissals Act [1977-2017] was considered by the Labour Court in the case of Malahide Community School v Dawn-Marie Conaty [UDD1837]. This case was initially heard in November 2017 [UDD1752] and the outcome appealed on a point of law to the High Court. The High Court remitted the matter back to the Labour Court which in its determination UDD1837, set out the criteria for the application of Section 2(2)(b) in list form and highlighted the obligation to apply these strictly. The Labour Court stated as follows:

a)       “The contract must be in writing;

b)       The contract must be signed by or on behalf of the employer;

c)       The contract must be signed by the employee;

d)       The contract must provide that the Act shall not apply to a dismissal consisting only of the expiry of the fixed-term…..” ……..

“Section 2(2)(b) essentially allows an employee who wishes to accept a temporary employment arrangement from an employer to waive his or her rights to protection under the [Unfair Dismissals] Act. In a situation where an employee is giving up what would otherwise be very valuable employment protection rights it is essential that the agreement clearly stipulates in writing what is being waived and that the parties indicate, through their signature, express agreement to it. These conditions must therefore be fully and completely satisfied”

Having regard to the evidence and submissions presented to me and in accordance with the strict interpretation set out in Determination UDD1837, I decide that the Complainant’s contracts of employment for the years 2017/2018 and 2018/2019 did not comply with Section 2(2)(b) of the Unfair Dismissals Act [1977-2017]. Accordingly, I decide that the Complainant is entitled to rely on the provisions of the Unfair Dismissals Act [1977-2017].

I now wish to consider the substantial matter of whether there was a dismissal and if so, whether it was unfair as claimed by the Complainant. Section 1 of the Unfair Dismissals Act [1977-2017] defines dismissal as:

“dismissal”, in relation to an employee, means—

a)      the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

b)      the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

c)       the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract 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), the cesser of the purpose….”

Section 6 (1) of the Unfair Dismissals Act [1977-2017] provides that:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”

Section 6 (4) of the Unfair Dismissals Act [1977-2017] sets out specific circumstances wherein the dismissal of an employee “shall be deemed…..not to be an unfair dismissal” – for example where the reason for dismissal is related to the capability, competence, qualifications or conduct of an employee or redundancy.

Section 6(6) of the Unfair Dismissals Act [1977-2017] provides that:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection [6](4)….. or that there were other substantial grounds justifying the dismissal”.

Section 6(7) of the Unfair Dismissals Act [1977-2017] provides that in determining whether a dismissal is unfair, regard may be had:

a)      “to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

b)      to the extent (if any) of the compliance or failure to comply…..with the procedure….or with the provisions of any code of practice….”

On the basis of Section 1(c) of the Unfair Dismissals Act [1977-2017], I am satisfied there was a dismissal in this instance. I must now consider whether the dismissal was unfair and in that regard, the combined effect of Sections 6(1) and 6(6) of the Unfair Dismissals Act [1977-2017], is that there is a statutory presumption of unfairness unless the Respondent employer can show otherwise and that there were substantial grounds to justify the dismissal.

It is the Respondent’s position that arising from its internal consultations, it had determined that additional Registrars were required to support its on call rosters and improve patient safety. To that end, the Respondent furnished the hearing with copies of two business cases which it had made to secure this particular type staffing – dated 26/01/2018 and 9/01/2019. These were not approved by the Respondent’s Employment Control Committee. The request for approval made on the 5th February, 2019 was returned unapproved on the 14th March, 2019. As a result, the Respondent stated that in consultation with the Complainant’s Head of department, the Respondent decided to suppress the Complainant’s fixed term position of Associate Specialist in favour of appointing two senior Registrars.

The Complainant contradicted the Respondent’s version of matters and asserted that his dismissal was as a consequence of the complaint he had made about the Head of department on 30 May, 2019. The Complainant stated that prior to then – in March 2019 the previous Head of department had approved his contract of indefinite duration (CID) from July 2019 and had communicated this to the Respondent’s HR department. The Complainant also maintained that that he had not heard about any discussions or re-arranging of posts due to safety concerns.

Having considered all the evidence and submissions, on the balance of probabilities I have come to the following conclusions:

·         The internal management of staff in terms of recruitment and deployment is a matter for the Respondent. In that regard, the Respondent has demonstrated that it was seeking to recruit additional Registrar posts for a considerable time prior to the dismissal of the Complainant and that its second business case for these appointments was refused on the 14th March, 2019;

·         No evidence has been presented to me that there was any consideration of suppressing the Complainant’s employment prior to June 2019 nor did it feature in the Respondent’s proposals for additional staffing. In that regard, I accept the Complainant’s evidence that it was represented to him in March 2019 that he may qualify for a CID. In saying this, I also accept the Respondent’s position that it did not commit to awarding a CID. However, I consider that the representation of itself indicates there was no intention on the part of the Respondent at that time to review or suppress the Complainant’s contract. I am supported in this view by the Respondent’s internal email of the 10th June, 2019 which refers to “The proposal to suppress the ….Associate Specialist posts and recruit 2 additional Senior Registrars….[and that] To proceed with this I would have to inform the….Associate Specialist that [his] contract cannot be renewed….”. This email of the 10th June 2019 also refers to a meeting of the 6th June “at which we discussed the ongoing difficulties with the Registrars Roster”;

·         The Respondent’s proposal to suppress the Complainant’s position was submitted for approval to the Complainant’s Head of department who responded on the 10th June, 2019 that “I can confirm that I have discussed this with all my colleagues and we are all in agreement to proceed….”. The Respondent outlined that it was standard practice to consult the Head of department about such matters and I understand why this would generally be the case. However, in circumstances where the position to be suppressed was that of the Complainant who had just made a complaint about the Head of department on the 30th May, 2019, I consider the involvement of the Head of department in this decision, raises a perception of lack of objectivity;

·         The management of complaints between employees within the Respondent is a matter for the Respondent in accordance with its policies and procedures. I note that the Respondent replied to the Complaint on the 6th June and stated that “I would be grateful for your feedback concerning his reply”. This is the same date on which there was a meeting within the Respondent to discuss the difficulties with the Registrar rosters. In all the circumstances, I am of the view that there was an unreasonable proximity between the submission of the Complainant’s complaint against the Head of department on 30 May, 2019 and the Respondent’s decision of the 10th June 2019 to suppress his contract. In this regard, I accept the Complainant’s evidence that the decision to terminate his contract which was conveyed to him on the 12th June 2019 came as a shock and was contrary to his expectations and previous representations which he had received regarding a CID. The letter of the 12th June advised the Complainant that “we are not therefore in a position to renew your contract as Associate Specialist from the July 2019 intake….”;

·         No evidence has been presented to me that there were any issues or difficulties with the Complainant’s work performance or conduct of the nature comprehended in Section 6(4) of the Unfair Dismissals Act [1977-2017]. Section 6(7) of the Unfair Dismissals Act [1977-2017] provides that I may have regard “to the reasonableness or otherwise of the conduct of the employer in relation to the dismissal”. The band of reasonable responses test was considered by the Irish High Court in Bank of Ireland v Reilly ([2015] IEHC 241). In that case, Noonan J. looked at Section 6(7) of the Act and stated:

“That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”

Noonan J. highlighted that the onus was on the employer to establish that there were substantial grounds justifying a dismissal or that the dismissal resulted wholly or mainly from a matter specified in Section 6(4) of the 1977 Act.

Having reviewed all the evidence and submissions, I find that the Respondent has not shown substantial grounds for the dismissal and has not rebutted the presumption of unfair dismissal. I decide this complaint is well founded.

Section 7 of the Unfair Dismissals Act [1977-2017] provides that redress may consist of re-instatement, re-engagement or compensation. The Complainant initially stated that he was seeking re-instatement. Having considered all the evidence however, I have concluded that compensation is the appropriate remedy. The Complainant is required to mitigate his losses and to adopt a proactive approach in obtaining replacement employment. In that regard, the Complainant stated that he was out of work for two weeks and that since July 2019 he had obtained employment in the UK as a Consultant Surgeon. Prior to his dismissal the Complainant was earning a gross annual salary of €101,000. Having considered all the evidence and submissions and noting that the dismissal caused financial loss, I   award the Complainant the sum of €10,000 for the unfair dismissal which I consider to be just and equitable having regard to all the circumstances.

Unfair Dismissal, Expiry of Fixed Term Contract