ADJ-00024698

Complainant

Respondent

Anonymised Parties

Complainant

Respondent

Representatives

Darata Matiwzewske

Ann Marie Courell

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-00031394-001

06/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00031394-002

06/10/2019

The complainant commenced employment with the respondent who runs a family business on 3 February 2008 as a cleaner with her primary placement on a cleaning contract in a school. The respondent has employed the complainant initially on a fixed term contract, later a CID-described by both parties as a permanent contract. The terms of the contract became an issue between the complainant and respondent in 2019. Between the terms of the contract issued to her which stated that she worked only during the school year and a communication from Revenue which stated that her employment had ceased on a given date, the complainant concluded that she was dismissed from the job she held from 2008. Dismissal is disputed by the respondent as the complainant continues to work for her without any break in service.

The complainant stated that she had worked for many years with the respondent and that except for a period around the time of maternity leave, she maintained that she worked in other locations for the employer during the summer months. When she asked for a contract of employment in 2019 she received a fixed term contract. The contract stated that she worked only fixed hours each year, limited to the hours of the school year and she would not accept that contract because she had worked during the summer months in other years. The complainant was not on lay-off during the summer months, did not receive social welfare benefit including job seekers benefit. The date of dismissal was given as 07/06/2019 as this was the date on the Revenue MyAccount, which also stated that she had a start date of 28/08/2019.

The respondent stated that the complainant was never dismissed and continued to work on the school contract for the respondent as a permanent, who had a very good relationship with the complainant which she wanted to retain. A fixed term contract was issued in 2019 in error. The permanent contract contained fixed dates related to the school year which was questioned by the complainant. The respondent provided a schedule of hours of work for the complainant which showed that while in some years she had provided cover and worked during the summer months, the extent and availability of this work varied greatly over the years and was not a fixed part of the contract, albeit the respondent would commit to providing such work when it became available into the future. Each year the respondent gave the complainant a letter for social welfare, providing whatever paperwork was required to assist her when there was no work or not enough work outside of the school year. The Respondent believed that the confusion and the problem stemmed from the way in which the revenue system changed in 2019.

As advised to the parties at the hearing, to have someone claiming to be dismissed when they were continuing to work for the same employer is unusual. The hours of work during the main part of the contract remain unchanged and the Employer recognises that the complainant is entitled to a CID. The hours of work outside of the school year have varied over the years and are neither fixed or permanent. It is noted that while a CID did not issue to the complainant since issues arose in 2019 and a fixed term contract was rejected by the complainant, the respondent and her representative indicated a willingness to issue new terms and to give an undertaking regarding work outside the school year when available, as in the past. This approach was urged on the parties at the hearing to end the impasse, confusion and uncertainty taking into account the good standing of the complainant.

Addressing the complainant, it was explained that while Revenue may use the term ‘ceased’ for official purposes on their documentation, that Organisation is not the decider as to whether an employment relationship has in fact ceased. The factors in a decision that an employee was dismissed are set out and decided by reference to employment legislation and the appropriate decision makers and not revenue terminology or that organisation. Whether or not the complainant claims or is entitled to social welfare benefit is a matter for the relevant government department in accordance with the regulations issued by that department from time to time.

Based on the available information the parties were advised that a decision would issue confirming that the complainant was not dismissed, noting the agreement of the parties to communicate to resolve any issues related to contractual arrangements. In circumstances where it is found that there was no dismissal, the question of an entitlement to pay in lieu of notice does not arise.

Complaint of Unfair Dismissal

I find that the complainant continues to be employed in continuous employment by the respondent and while there may be issues related to the terms of her Contract of Indefinite Duration to be addressed, a complaint of unfair dismissal by the complainant is not well-founded.

Complaint of Failure to Give Notice

Following on from the decision that there was no dismissal in this case, I find that the complaint of a failure to provide notice of termination of employment brought by the complainant is not well-founded as there was no contravention of the terms of the legislation by the respondent.

Dismissal vs continuity of employment; application of minimum notice.