FULL RECOMMENDATION
PARTIES : FORUM CONNEMARA CO DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No’s: ADJ-00020192 CA-00026685-001. This is an appeal by Ms Lucy Walsh (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00020192 CA-00026685-001, dated 24 April 2020), under the Unfair Dismissals Act 1977 (‘the Act’). The Notice of Appeal - whereby the Complainant indicated her appeal was confined to ‘remedy and/or quantum’ - was received by the Court on 11 May 2020. The Court heard the appeal in Westport on 23 November 2021. The Factual Matrix The material facts in relation to the Complainant’s part-time employment with Forum Connemara CLG (‘the Respondent’) pursuant to a Community Employment Scheme are not in dispute. It is common case that the Complainant’s employment terminated on 31 January 2019 by reason of the Respondent’s decision not to renew it on the expiry of a second fixed-term contract. It is accepted on behalf of the Respondent that the non-renewal of a fixed-term contract (other than where the employer has lawfully availed itself of a waiver under section 2(2)(b) of the Act) is a dismissal for the purposes of the Act. The Complainant’s first contract was for the period 15 May 2017 to 5 February 2018. Her second contract commenced on 5 February 2018 and terminated on 1 February 2019.The Complainant was assigned by the Respondent to work as an administrator with Clann Family Resource Centre. She worked 19.5 hours per week (over 2.5 days) and was paid €220.00 per week gross. An incident occurred between the Complainant and a member of the board of Clann Family Resource Centre on 31 October 2018 following which the Complainant raised a grievance in relation to what she perceived to be an unwarranted verbal attack on her by that board member. It is the Complainant’s submission that management at Clann Family Resource Centre chose to deal with her complaint against the (then) board member by way of an informal process following which she received ‘an explanation of sorts’ from the person whose behaviour she had complained about. However, in the Complainant’s view, that ‘explanation’ fell well short of a fulsome, sincere and contrite apology. She, therefore, challenged management’s decision not to formally investigate her complaint. It appears management at Clann did not give any ground and continue to insist that the Complainant accept the ‘explanation’ that he been offered to her. The Complainant thereafter approach the Respondent – her ‘de iure’employer – who advised that it could not intervene directly in the internal affairs of an independent, separate organisation (although the Community Employment Scheme Supervisors employed by the Respondent had written to the Chairperson of Clann in early December 2017 requesting a resolution of the dispute between the Complainant and the board member in question). The Respondent ultimately informed the Complainant that she would be moved from the Clann Family Resource Centre on the expiry of her contract. By letter dated 20 December 2018, the Respondent confirmed to the Complainant that, the terms of the Community Employment Scheme under which she was employed, she would be entitled to a further one-year contract of employment and that the Respondent was in a position to offer her a further contract with effect from 4 February 2019. No further contract was, in fact, offered by the Respondent to the Complainant. By letter dated 30 January 2019, the Respondent informed the Complainant as follows: "Forum Connemara CLG has been in contact with a number of providers in your area but none of the organisations we contacted are in a position to take on an additional CE worker at this time. As it is not possible to secure a work placement for you we regret we are not in a position to offer you a new contract.” The Law Paragraph (c) of the definition of ‘dismissal’ on section 1 of the Act provides: “(c) [‘dismissal’, in relation to an employee, means] 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 2(2)(b) of the Act provides: (2) [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.” The Complainant’s second written contract of employment with the Respondent and dated 10 February 2018, contains no clause that purports to exclude the application of the Act on the expiry of the fixed term therein in accordance with section 2(2)(b) of the Act. No justification for the Complainant’s dismissal within the meaning of section 6 of the Act was offered at the time for the non-renewal of the Complainant’s fixed-term contract. It follows, therefore, that the Respondent’s failure to provide the Complainant with a further fixed-term contract – in respect of which she was eligible within the terms of the relevant Community Employment Scheme – was an unfair dismissal within the meaning of the Act. Appropriate Remedy The Adjudication Officer awarded the Complainant compensation of €1,500.00 in respect of her complaint of unfair dismissal. The Complainant has appealed from that award to this Court and has submitted that her preferred remedy is an award of reinstatement. The effect of reinstatement is to put a successful Complainant back in the position he or she would have been in but for the disputed dismissal. It has the effect of nullifying the disputed dismissal. As a remedy, it is rarely awarded in unfair dismissal cases by the Workplace Relations Commission or the Labour Court as it is deemed appropriate only when the Commission or the Court is of the view that the bond of trust and confidence necessary to maintain an employment relationship between a Complainant and a Respondent remains sufficiently intact. Furthermore, it amounts to a clear statement that the Complainant has not contributed by their conduct or otherwise to their dismissal. Having heard the Parties to this case, the Court determines that the appropriate and equitable remedy is one of reinstatement of the Complainant to the position she was in as of the date on which the Respondent failed to renew her fixed-term contract of employment in February 2019 at which point in time she was entitled, pursuant to the terms of the Community Employment Scheme under which she had been engaged, to a further one-year fixed-term contract of employment. The Court so determines.
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