ADJ-00028804

Complainant

Respondent

Parties

Francis  Hore

Flavour Manufacturing Wexford - Coca Cola European Refreshments

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-00038587-001

20/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00038587-002

20/05/2020

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

CA-00038587-003

20/05/2020

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

CA-00038587-004

20/05/2020

The complainant was on a fixed term contract with FMW Wexford from January 7th, 2019 to December 23rd, 2019. In October 2019 this was extended to 26th June 2020. He complains that he was unfairly dismissed.

The complainant had his first-year evaluation at the end of January or start of February 2020with his production manager and had two other evaluations without any negative feedback.

On March 18th three internal permanent jobs were advertised for a position he had been doing for fifteen months, so he applied and was interviewed for this post. He thought he had performed well in the interview.

On April 1st, 2020,he was given a pay rise and extra bonuses.  But on April 8th he called to a meeting where he learned that his application had been unsuccessful. He says he was also told that he could leave with immediate effect and not finish his shift but that he would be paid until the end of May 2020.

He was in total shock and asked for a reason but got no answer. He returned to the meeting after a break and said that he would finish his shift but was not given the option of completing his contract term.

Later, he asked his manager why he did not get the position. The manager said he did not want to get into it and asked whether he would sign a form accepting termination arrangements.

In due course he contacted HR expressing the view that he had not been treated fairly. He was invited to another meeting to discuss what happened and thought that this might clear things.

At this meeting he thought he was not listened to and felt humiliated. He was told he had not been successful and that they would pay him until the end of his contract. He was asked to confirm his acceptance of the severance offer.   

He said he would think about it but said it was not to do with money but with fairness and equality. He asked whether he could work until end of his contract, but this was refused. 

He feels he was interviewed for a job he was never going to get, then told he did not apply enough effort during his interview and was unsuccessful for a position he held for fifteen months.

The complainant began his employment with FMW on January 7th, 2019 on a fixed term contract with an end date of December 31st, 2019. 

On October 4th, 2019, his fixed term contract was renewed with an end date of June 26th, 2020. A copy of the contract of employment and his extension letter were submitted. 

On March 18th, 2020, three production operators’ roles were advertised, and the complainant applied.

Following the interview process, only two of the permanent roles were filled. The two most suitable individuals were chosen for the two positions. The complainant was the only unsuccessful applicant. 

On April 8th, 2020, the complainant met two of his managers and was advised that he had not been successful in getting a permanent role. The complainant said that he would now not be able to return to work, having been unsuccessful. 

On that basis it was agreed that he would finish up that day and would be paid until end May 2020. 

The complainant then contacted the HR Manager and expressed shock at what had happened. She explained that his fixed term contract had been due to end on June 26th, 2020, and unfortunately, he had not been successful in securing the permanent role, due to his performance at interview. 

The respondent further offered the complainant another meeting on May 6th, 2020 to discuss the matter further, as it was clear that he was upset following the initial meeting of April 8th.

On May 6th, he was advised that he would be paid the balance of his contract including all benefits up to June 26th. He said that he would need to consider this. 

On May 22nd, HR wrote to the complainant saying he would be fully paid up to his contract end date June 26th, 2020. 

On August 24th, 2020, the respondent received details of the complaints to the WRC. 

The complainant was not unfairly dismissed. It was he who said that he could not continue having not been successful in application for his permanent role.  FMW had an objective recruitment process for the permanent roles and Mr. Hore was not successful. He was paid the full amount owed to him under his fixed term contract . 

Regarding the complaint relating to bullying and harassment procedures under the Industrial Relations Act,1969, the respondent has no information in relation to this complaint. No complaint was raised by the complainant during the course of his employment.

Regarding the complaint under Minimum Notice & Terms of Employment Act, 1973 he was paid the entire amount due to him under his contract. 

Regarding Complaint CA-00038587-004 Mr Hore contends that as a fixed term employee his conditions of employment were less favourable than a permanent employee. This is not the case.

In conclusion, the complainant was not successful at interview and not offered a permanent role. He advised FMW that he could not return to his position at the meeting of April 8th, 2020 on being told he was not successful in the competition.

The nub of this complaint can be traced to the application by the complainant for a ’permanent’ position. He had been engaged on a fixed term contract but when the opportunity arose to apply for a position with a contract of indefinite duration, he took it.

Unfortunately, he was not successful. He was one of three applicants for three positions, but the respondent decided to fill only two and the complainant lost out. The complainant could not understand why, having discharges his duties successfully up to that point he could have been unsuccessful.

But this is to misunderstand the nature of a competitive interview process. He is not the first employee to be in this position.

That aspect of the matter is not relevant to the complaint.

There is something of a conflict in the evidence as to what happened next insofar as the complainant claims he was told that he would have to leave his employment despite having some months of his fixed term contract to run.

One of his managers gave evidence to contradict this and said that it was the complainant who raised the issue of how he could face working in the company having failed in the competition. I prefer the manager’s evidence on this point; he was a credible witness, and his account of the meeting rang true.

Apart from this specific evidence I can see no basis for the respondent to act in this way and it had no need to do so.

The parties eventually agreed a resolution of that aspect of the issue involving the payment to the complainant of the balance of his contracted period.

But there is no sign here of any sort of dismissal by the respondent, leaving aside the important fact that the complainant had a fixed term contract that specifically excluded the application of the Unfair Dismissals Act.

The complainant, understandably disappointed at the outcome of his application and fearing a degree of embarrassment at having to return to work, decided to terminate the employment.

As for the other complaints no case has been made out. He was paid all entitlements due to him under the contract and he offered no evidence in relation to the complaint under the Protection of Employees (Fixed-Term Work) Act, 2003.

The complaint under the Industrial Relations Act was withdrawn.

For the reasons set out above Complaints CA-00038587-001, 003 and 004 are not well-founded.

Complaint CA-00038587-002 was withdrawn at the hearing

Unfair Dismissal, Fixed Term contract