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-00029193-001

20/06/2019

The Complainant was initially employed by the Respondent on a fixed term contract from the 11th July, 2017. His complaint is that he was unfairly dismissed with effect from the 13th June, 2019. His employment ended on the 7th July, 2019. The complaint was received by the WRC on the 20th 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 sequence of two one year fixed term contracts from 10 July, 2017 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 had not been approved at national level and that its last application of the 5th February, 2019 had been returned unapproved on the 14th March, 2019.

The Respondent stated that 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 increasing 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 23rd 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 - 19 pages – which was unsigned. This document outlined the Complainant’s salary and terms and conditions of employment and stated the following at paragraph 1(a) - “Purpose and Commencement Date”:

“This is a contract of employment between [the Respondent] and [the Complainant]. [The Complainant] is appointed to the post of Associate Specialist…. with effect from the 10th July 2017. The Contract is

for a fixed term/purpose as follows: 12 months

Should the contract be for a fixed term, the Unfair Dismissals Act, 1977 – 2015 shall not apply to the….dismissal consisting only of the expiry of the contract on the specified date….”.

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

·         The Complainant’s complaint against the Head of Department of the 23rd May, 2019;

·         The reply of the Head of department dated 4th 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 …. and I would be grateful for your feedback concerning his reply”;

·         Copy of email from the Respondent’s Manager to the Head of the 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 ….. Registrars Roster. As you are aware we had submitted a business case…..to get 2 additional….Registrar 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 Registrars 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 Specialistthat [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 email – also of the 10th June, 2019 - from the Complainant’s Head of department to the Respondent’s Manager 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 from the Respondent’s Manager to the Complainant 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….Registrar 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 Registrar 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 Registrar 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 2017. 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 the 23rd 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 the problem with his contract only arose in June 2019 – ie after his complaint was made. In this regard, the Complainant stated that he had attended weekly meetings in his work department and that there had been no mention at any meetings that his Associate Specialist post was to be suppressed. The Complainant stated that he was advised in or around March or April that the department was happy with his progress and would renew his contract.

It is the Complainant’s position that he was unfairly dismissed and that following his complaint, there was a sudden withdrawal of his post in June 2019 without notice. This he stated was contrary to the indications he received in March 2019 that his contract would be renewed. The Complainant stated there were no issues with his work. 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. 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 though his employment formally ceased on the 7th July, 2019. From the 15th July, 2019 the Complainant commenced working elsewhere in Ireland as a locum Consultant. The Complainant is seeking re-instatement.

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

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

·         The Complainant’s complaint was against the new Head of department;

·         In relation to the purported assurance given to the Complainant in March 2019 about the renewal of his contract, the Respondent put it to the Complainant that he had not identified who had given this assurance and the Respondent reiterated its submission that “at that point in time and during this discussion, .the objective may have been to extend [the Complainant’s] contract it is ultimately…..[Management] who complete contract renewals”;

·         The Complainant maintained that he was never informed at any meeting that there would be suppression of posts or that his post may be in jeopardy;

·         The Respondent maintained that not all posts are advertised in February, that generally its July intake of new recruits would be advertised in or around February/March and that there is continual advertising;

·         The Respondent maintained that it had issued a contract to the Complainant for the 2018/2019 employment period 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. After the adjudication hearing, the Respondent’s HR Manager emailed the WRC on the 19th February, 2020 with the following:

·         Copy of the first contract which was unsigned. This contract was titled on the front page “As of 30th June 2017” and stated at paragraph 1 titled “Purpose and Commencement Date” that: “This is a contract of employment between [Respondent] and [Complainant]. [Complainant] is appointed to the post of Associate Specialist…with effect from the 10th July 2017. The Contract is for a fixed term/purpose as follows: 12 months”. The following sentence was also included: “Should the contract be for a fixed term, 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.”;

·         Copy of the second contract which was unsigned. This contract was also titled on the front page “As of 30th June 2017” and stated at paragraph 1 titled “Purpose and Commencement Date” that:   “This is a contract of employment between [Complainant] and [Respondent]. [Complainant] is appointed to the post of Associate Specialist…with effect from the 09.07.2018. The Contract is for a fixed term/purpose as follows: 12 months”. The following sentence was also included: “Should the contract be for a fixed term, 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.”;

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

I wrote to the Complainant and the Respondent 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 an email of the 15th May 2020, the Respondent advised as follows:

·         “We issued 2 contracts to [Complainant] to cover the period July 17/July 18 and July 18/19. I note the letter dated 06.05.20 from the WRC……states that both contracts were not signed by either party. It would not have been possible for us to sign these until they were returned to us signed by [Complainant]. The copy we provided was our file copy, the originals were sent to [Complainant] to return to us. [Complainant] was reminded by us every time he called to the HR Office….to return his contracts.”

·         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 15th and 23rd May 2020, the Complainant advised:

“As far as contract was concerned I signed only the first contract July 2017-2018. After that we have been advised to continue for second year and no contract was offered nor we signed it. At the time of the third contract we have been told after …meeting that we should continue for the third year as it was time somewhere near April/May. Since the head of department changed in June…..then issue started”

“In response to the email from the respondent, I would like to adhere to the fact that I didn’t receive any copy of second contract neither a reminder to sign it. We were communicated verbally regarding the extension of our Post of Associate Specialist”.

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”.

Following my communication with the parties of the 6th May 2020, the Complainant stated that the first contract for 2017/2018 year was the only contract he signed and that he never received a contract for the 2018/2019 employment period and nor was he requested to sign any. The Respondent stated that two 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 either contract.

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, that there is no dispute that the second contract for 2018/2019 was not signed, that I was not furnished with signed copy of any contract, and given 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 in his/her 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 Respondent’s request of 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 has contradicted the Respondent’s version of matters and has asserted that his dismissal was as a consequence of the complaint he had made about the Head of department on the 23rd May, 2019. The Complainant stated that prior to then there were no issues with his work and that he was assured his contract would be renewed.

In considering 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 Registrar posts. In this regard, I accept the Complainant’s evidence that it was represented to him in March 2019 that his contract may be renewed. In saying this, I accept the Respondent’s position that it did not commit to doing so. In my view, however, this representation indicates that there was no intention on the part of the Respondent at that time to review or suppress the Complainant’s contract. I have also noted 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 23rd 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 Complainant 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 roster. 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 23rd 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 he regarded the decision to terminate his contract as a “sudden withdrawal of post after complaint was lodged…” and contrary to his expectations and the previous representations made to him in March 2019. 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 15th 2019 he had obtained employment as a locum Consultant. Having considered all the evidence and submissions including the Complainant’s pre-dismissal gross annual salary, 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