Complainant

Respondent

Anonymised Parties

A Carpenter

A Hospital

Representatives

Derek Kelleher Connect Trade Union

Peter Flood Ibec

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-00032375-001

21/11/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00032375-002

21/11/2019

The complainant was employed by the respondent as a carpenter on the 7th of January 2018 and his employment ended on the 1st of November 2019. He was paid €1,345 per fortnight and worked 39 hours per week. He is claiming unfair dismissal in terms of the Unfair Dismissals Act 1997-2015 and breaches of the Protection of Employees (Fixed-Term Work) Act 2003.

The complainant was employed by the respondent as a carpenter on a 7 month fixed term contract starting on the 8th of January 2018. The complainant said that when he originally applied for the position he was led to believe it was a permanent position and the Union had also raised this with management at the time. The respondent issued the complainant with a fixed-term contract of employment, but the complainant said that he was not aware it was a fixed term contract and it was not explained to him by management. The complainant thought at the time that the date on the contract had something to do with a probationary period.

The Union said it was informed that this post would be formalised on a permanent basis as soon as the recruitment embargo was lifted. The complainant was informed on the 7th of July 2018, that his fixed term contract was extended and would expire on the 6th of January 2019, without any break in service.

On the 4th of January 2019, management wrote to the complainant to tell him that his contract, which was due to expire on the 6th of January 2019, was being extended. He was informed that it was a specified purpose contract of employment which would continue until the post was filled on a permanent basis.

It was submitted that the respondent failed to provide the complainant with a contract setting out the objective grounds justifying the renewal of a fixed term contract. Instead management told the complainant that the contract would change to a specified purpose contract which would last about 1 to 2 months, but the contract lasted for a further 10 months.

The complainant applied for the post when it was advertised, but he was not successful in getting it and he was dismissed from the employment on the 1st of November 2019. It was submitted that at the time the complainant was dismissed he had one year and 10 months of employment and that he had the protection of the Unfair Dismissals Act. It was submitted that the complainant was unfairly dismissed.   I was referred to the High Court case of the Board of Management of Malahide Community School and Dawn Marie Conaty 2019 IEHC 486 concerning the application of the Unfair Dismissals Act.

The Union submitted that the complainant that was not made aware of the code of practice for appointments to positions in the public service and his right to appeal the decision of the interview board. He was only informed verbally that he was not successful in getting the permanent position. The Union submitted that management failed to inform the complainant (a fixed-term employee) of opportunities for (a) permanent employment and (b) of appropriate training opportunities. Furthermore, the respondent failed to provide objective grounds justifying the renewal of the fixed term contract or the specific purpose contract. It was also submitted that the complainant was entitled to a contract of indefinite duration.

The complainant commenced employment with respondent, as a carpenter, in the facilities engineering maintenance section in January 2018. He was employed on a fixed term contract for 6-months which was due to expire in July 2018. This contract was signed by the respondent and the complainant in January 2018. In July 2018 he was provided with the letter extending the contract. The only change to his existing contract was the end date of the contract which extended his employment for a further six months until January 2019. The extension letter was signed by both the respondent and the complainant. The complainant provided a statement to the respondent saying he was signing this contract under duress. The complainant continued to work under the terms of the contract offered.

On the 4th of January 2019, the complainant was issued with a specified purpose contract to commence on the expiration of the existing fixed term contract. The objective justification ground for offering the complainant another fixed term contract rather than a contract of indefinite duration was set out in the contract which stated: This is a specified purpose contract of employment which will continue until this post is advertised, interviewed and filled on a permanent basis through the normal recruitment process of an open competition.”

The contract also stated: “The provisions of the Unfair Dismissals Act 1977 to 2007 will not apply to the termination of this contract where such termination is by reason only of the cesser of the said purpose.”

This contract extension was signed by both the complainant and the respondent.

The position the complainant occupied was a permanent post which the complainant filled on a temporary basis because the previous carpenter had moved on to another job. The carpenter employed on a permanent basis left employment in November 2018. The permanent post was advertised by the respondent in June 2019. The complainant applied for the job and was interviewed; however, his application was unsuccessful, and another fixed-term worker employed by the respondent elsewhere was appointed to the position.   The complainant was issued with notice of the termination of his employment on the 4th of October 2019 and his employment terminated on the 1st of November 2019.

The complainant was given a copy of his interview scores. He also requested through his Union feedback on his interview and was offered it by the interview board. A meeting was arranged but the complainant ultimately decided not to proceed with the feedback meeting.

In relation to signing the contract under duress, the respondent submitted that this statement is irrelevant as the complainant continued to work under the terms of the contract offered. I was referred to the Labour Court decision in the case of Maynooth Mission to China t/a Colombian Missionaries EDA 1521. In that case the complainant’s contract of employment was extended by way of a fixed term contract of employment after she reached 65. She renounced that contract but continued working under her original contract of employment and she alleged as a result she was unfairly dismissed on reaching the age of 66.

The Labour Court rejected the argument stating that as: “the complainant had at no time renounced that contract and continued to work on the terms set out by the respondent.”

It was submitted that in this case that the complainant may have contested the nature of the contract offered but he did sign it and continued to work under the terms set out by the respondent.

Legal Submission

Unfair Dismissals Act

I was referred to section 2(2)(b) of the Unfair Dismissals Act which deals with exclusions from the Act.

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.”

It was submitted that each of the fixed term contracts comply with the exemption set out above and for this reason the complainant’s claim of Unfair Dismissal is excluded from the Act.

Protection of Employees (Fixed-Term Work) Act, 2003

Section 8 of the act requires the respondent to provide a written statement setting out the objective grounds justifying the renewal of the fixed term contract and the failure to offer a contract of indefinite duration. The respondent accepted that the second fixed term contract, which commenced in July 2018, does not contain such a clause. It was submitted that any complaint under this section is out of time. Section 41(6) of the Workplace Relations Act 2015 provides for a 6 month time limit for referring any such complaint to the WRC.   Section 41(8) of the 2015 Act provides that an extension of 6 months may be provided where there is reasonable cause to justify the delay in referring the complaint. It was submitted that this case was referred to the WRC on the 21st of November 2019, which is almost 17 months from the time the second contract commenced and therefore the extension of time does not apply. I was referred to the case of Mount Temple Comprehensive School vs Fergus RussellFTD 0815 where the Labour Court stated:

“it seems clear that any contraventions of Section 8 which may have occurred on the renewal of the Claimant’s contracts arose outside the time limit prescribed by Section 14(3) of the Act. Accordingly, on that account alone, a complaint concerning any such contraventions could not be entertained under the Act.”

The is the same time limit which is contained in Section 46 of the 2015 Act.

In relation to the third contract, it was submitted that it contains an objective justification clause and specified that is was a special purpose contract rather than a contract of indefinite duration. This was done prior to the expiration of the existing fixed term contract. The third contract commenced on the 4th of January 2019 and any complaint about it is now outside the 6 month time limit as the complaint was referred to the WRC on the 21st November 2019.

It was submitted therefore, that the respondent has no case to answer in relation to the failure to provide the complainant in writing objective grounds justifying the renewal of the fixed term contract, and the failure to offer a contract of indefinite duration

Contract of Indefinite Duration

Section 9 (2) of the Act states:

“where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.”

The complainant’s total service is just under 2 years from 8th of January 2018 to the 1st of November 2019.

In the case of Donegal County Council vs Ciara Joyce FTD 111 the Labour Court stated:

“Section 9(2) only applies where the aggregate duration of a Complainant’s fixed-term employment exceeds four years. As the Court has decided that the Complainant’s continuous employment did not exceed four years, she cannot avail of Section 9(2) in advancing her claim to a contract of indefinite duration. It follows therefore that the defence provided at Section 9(4) (objective grounds for the renewal of a fixed-term contract) is of no relevance in the instant case.”

It was submitted that the complainant does not have the service to entitle him to a contract of indefinite duration.

In relation to the complainant’s claim, that he did not know that he was signing a fixed term contract and that he thought that the date mentioned in the contract had something to do with his probationary period, the respondent rejects this argument. I was referred to the case of National University of Ireland Maynooth vs Dr. Ann Buckley FTD 092, in which the complainant alleged she did not understand what she was signing. The Labour Court stated:

…. She did not understand what she was signing, but was afraid that if she did not do so, the Respondent might refuse to host the research project.

The Court cannot accept this. The sections are plainly expressed, and it was made clear that further fixed-term work, rather than a contract of indefinite duration, was being offered. These were the stated reasons why. She did not consult her Union, nor did she take legal advice. If she was in any doubt what the clause meant and especially as it concerned her future employment then the logical course of action was surely to seek such advice before signing the form. She then saw the clauses encapsulated into a binding contract, which she also signed three weeks later, again apparently without taking advice.

…The Court is of the view that the Claimant, having signed a binding contract agreeing to the objective reasons for its renewal on a fixed-term basis, cannot subsequently resile from this position and is therefore not entitled to a contract of indefinite duration.”

It was submitted, that it is clear in the first contract that the complainant signed, that the post was a fixed term post for a period of six months. The complainant signed a second fixed-term contract under protest, but he continued to work under the terms of that contract and the third contract made it clear that it was a temporary contract and the complainant signed this also.

In relation to the claimants contention that he should have been appointed to the permanent post of carpenter as he had been performing the role for 2 years, I was referred to the High Court case of the Health Service Executive Dublin North East vs Ali Umar 2011 IEHC 146, where it was argued on behalf of an employee, who had over 4 years on a fixed term contract with the HSE, that he should have been appointed to a permanent role without an open competition and the failure to do so was not in compliance with the terms of the Protection of Employees (Fixed-Term Work) Act. This argument was rejected by the High Court and in the decision Judge Hedigan stated

“It is not therefore in my view permissible to import into the statute something which is not there by way of applying a purposeful interpretation. The requirement to consider the respondent for the permanent post without an open competition seems to do just that. The purposive interpretation made in Khan (a previous decision by the Labour Court) and applied here is in my view an impermissible attempt to amend the statute.”

It was submitted that the complainant had no entitlement to the post of permanent carpenter on the resignation of the permanent carpenter from the Post.

In the case of HSE vs Abdel Raouf Sallam, the Labour Court made the following comment again where the worker had over 4 years’ service

“On that point the instant case can be distinguished from that of Russell vs Mount Temple Comprehensive School. In that case the claimant was employed on a number of fixed term contracts, each limited by time, to provide cover for a teacher who was on a career break. Mid-way through the final contract the teacher for whom cover was being provided retired. The complainant contended that at that point the objective justification originally relied upon ceased to have effect and his contract became one of indefinite duration. Both this Court and the High Court on appeal held against him on that contention. It was held that if the term in the contract providing for its expiry by effluxion of time was lawful at the time of its conclusion it could not be rendered unlawful by a subsequent unforeseen event.”

It was submitted that the circumstances of this case, other than the issue of 4 years’ service, are similar to those in the Mount Temple Comprehensive School case. The complainant was employed to cover for a permanent carpenter who had been transferred on a temporary basis to another section. The complainant was employed on a fixed term contract until January 2019. The fact that the permanent carpenter resigned in late 2018 is not relevant. Once the justification for a fixed term contract existed at the time the contract commenced, then it is objectively justified even if at a later time the permanent carpenter resigns from the employment. The third temporary contract was a specified purpose contract that was put in place until the permanent role of carpenter was filled. However, there was never any commitment given to the complainant that he would be made permanent if the carpenter employed on a permanent basis resigned from that position. Furthermore, the complainant applied for the position and attended interview but was unsuccessful.

In conclusion it was submitted that no breach of the Unfair Dismissals Act took place. The complaints regarding not providing objective grounds for the renewal of a fixed term contract was referred outside the statutory time limits set down in the legislation. The complainant has no entitlement to a contract of indefinite duration under the terms of the Protection of Employees (Fixed-Term Work) Act as he does not have the required service to have such an entitlement. Neither is there an obligation to give an employee on a fixed term contract the role he covered for as a permanent employee on the resignation of that employee.

Unfair Dismissals Act

The complainant is claiming that he was unfairly dismissed on the 1st of November 2019. The respondent submits that the complainant’s employment covered by Section 2 of the Unfair Dismissals Act and his employment ended by virtue of the expiry of the special-purpose contract given to him on the 4th of January 2019.

The complainant was employed and two successive fixed term contracts the first commenced on the 8th of January 2018 and the second commenced on the 7th of July 2018, which was due to expire on the 6th of January 2019. On the 4th of January 2019 he was given a special purpose contract which he signed on the 11th of January 2019. His employment ended on the 1st November 2019. He was filling in for a permanent employee who was on a temporary transfer to a different section and that employee resigned in late 2018.

Section 2(2)(b) of the Unfair Dismissals Act provides an exclusion from the terms of the Act:

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.”

I note that the third contract which the complainant signed on the 11th January 2019 was a special purpose contract which stated as follows:

“This is a specified purpose contract of employment which will continue until this post is advertised, interviewed and filled on a permanent basis through the normal recruitment process of open competition. This may take up to 1-2 months. The provisions of the Unfair Dismissals Acts 1977 to 2007 will not apply to the termination of this contract where such termination is by reason only of the cesser of the said purpose.”

The complainant was unsuccessful in his application for the permanent post and he was informed that his contract would expire on the 1st November 2019. I am satisfied that the complainant was not dismissed but the specified purpose contract of employment which was signed by both the complainant and the employer expired once the permanent post was filled. I find that the dismissal comes within the exclusion in section 2(2)(b) of the UD Act cited above. I find that the complainant was not unfairly dismissed pursuant to Section 2(2)(b) of the UD Act.

Protection of Employees (Fixed Term Work) Act 2003

The complainant claimed that he was employed on a permanent contract and he did not understand when he signed the written contract that it was a fixed term contract and believed that the date on it had something to do with a probationary period. He also claimed that that the respondent failed to provide objective grounds for renewing the fixed term contract on the 7th July 2018, and again in January 2019 when he was issued with a special purpose contract. The respondent rejected the complainant’s claim that he did not know that the first contract was a fixed-term contract and submitted that any contravention in respect of the two subsequent contracts were referred outside the statutory time limit.

Section 8(2) of the Act provides as follows – “Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal”

Time Limits

The Workplace Relations Act 2015 at Section 41(6) provides:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

And Section 41(8) provides

(8) “An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

I note that the complainant signed this contract on the 18th January 2018 and it clearly sets out that it was a fixed term contract and would terminate on the 7th July 2018. Any complaint in relation to this contract was referred outside the statutory time limit. The second contract issued on the 7th of July 2018 and expired on the 6th January 2019. The complaint in respect of this contract was referred to the WRC on the 21st November 2019. This complaint was referred outside the statutory time limit.

The third contract commenced on the 4th January 2019 and it was referred to the WRC on the 21st of November 2019. The complainant said that he should have been offered a contract of indefinite duration instead he was offered a specified purpose contract.

I am satisfied that any complaint in relation to this contract was referred outside the 6 month time limit and there were no reasonable grounds put forward by the complainant for the delay in referring the complaint to grant an extension in accordance with section 41(8).

The complainant also claimed that he should have been offered a contract of indefinite duration. The union submitted that they wrote to the respondent on the 12th of August 2019 and before the permanent post was advertised seeking a contract of indefinite duration for the complainant.

Section 9(2) provides: Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.

I note that the complainant had a total of 1 year and 10 months employment with the respondent and there is no obligation on the respondent under section 9(2) to convert the contract to a contract of indefinite duration.   I was referred to the case of Donegal County Council vs Ciara Joyce FTD 111 where the Labour Court stated:

“Section 9(2) only applies where the aggregate duration of a Complainant’s fixed-term employment exceeds four years. As the Court has decided that the Complainant’s continuous employment did not exceed four years, she cannot avail of Section 9(2) in advancing her claim to a contract of indefinite duration. It follows therefore that the defence provided at Section 9(4) (objective grounds for the renewal of a fixed-term contract) is of no relevance in the instant case.”

I am satisfied that the complainant had insufficient service to entitle him to a contract of indefinite duration. I find that this complaint is not well founded.

CA-00032375-001 - Unfair Dismissal Act

I find that the complainant was not unfairly dismissed pursuant to Section 2(2)(b) of the UD Act.

CA-00032375-002 – Protection of Employees (Fixed-Term Work) Act, 2003

I find that the complaints referred pursuant to Section 8(2) of the Act were referred outside the statutory time limits and I have no jurisdiction in the matter.

I find that the complaint referred concerning a contract of indefinite duration is not well founded.

Unfair Dismissals Act – section 2(2)(b) fixed-term contracts, Protection of Employees (Fixed-Term Work) Act, 2003 – sections 8(2) and 9(2), fixed-term contracts, contract of indefinite duration, Workplace Relations Act - Time limits.