FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : AKINA DADA WA AFRICA (REPRESENTED BY SHARON DILLON LYONS B.L. INSTRUCTED BY CYRIL & CO SOLS) - AND - CLAUDIA HOREAU (REPRESENTED BY MICHAEL MCCORMACK B.L. & IAN FITZHARRIS B.L. INSTRUCTED BY FERAN & CO SOLS) DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(S)ADJ-00011629 CA-0015497-001 CA-0015497-002 Ms. Horeau, ‘the Complainant’ was employed by Akina Dada, ‘the Respondent’, on a two-year fixed term contract from January 2015 up to 31 December 2016. On the latter date, the Complainant was on maternity leave. In October 2017, the Complainant states that she was constructively dismissed by the Respondent. For reasons that are claimed to relate to the substantive issue of an alleged constructive dismissal, the Complainant never returned to work for the Respondent from the date on which she left to take up her maternity leave. It is the position of the Respondent that the Complainant had ceased to be an employee on the date of her resignation and that, therefore, there could not have been a constructive dismissal. The Complainant states that her fixed term contract was extended up to the date of her alleged constructive dismissal.
A substantial body of argument was made and re-made in support of the respective positions. The following is an attempt to summarise those arguments that relate directly to the matter that the Court has to consider, which at various times were conflated with matters that are more proper to the substantive point, as to whether or not there was a constructive dismissal. Summary of Complainant Arguments Section 10(2) of the Maternity Protection Act 1994 states, as follows; (2) Where an employee is employed under a contract for a fixed term and that term expires before the day which, apart from this subsection, would be the last day of her maternity leave, then— (a) notwithstanding any other provision in this Part, the last day of her maternity leave shall be the day on which the term expires; and (b) nothing in this Part shall affect the termination of the employee’s contract of employment on that day. It is possible to interpret Para (a) to mean either that the ‘day on which the term expires’ changes to become the ‘last day of her maternity leave’ or, alternatively that it changes to the ‘day on which the term expires’. It was open to the Respondent to eliminate any risk of pregnancy discrimination by terminating the Complainant’s employment on the expiry of her contract and explaining to her that this was solely due to the expiry of the contract. With regard to any suggestion that the Respondent retained the Complainant to the end of her maternity leave, (June 2017) on a discretionary basis so that she could enjoy the benefits of maternity leave, it must be noted that the Respondent did not pay maternity pay and the Complainant’s right to State-paid maternity benefit was unaffected by whether or not she remained in employment or on maternity leave. The Respondent continued to communicate with the Complainant after the expiry date in her contract as if they regarded her as an employee. In effect, her contract of employment was extended. As an example, the Respondent acknowledged the Complainant’s wish to take an additional 16 weeks’ maternity leave in March 2017. In May 2017, the Complainant’s representative indicated an intention to return from maternity leave in June 2017 and never received a reply to deny her right to do so. The Complainant remained employed by the Respondent beyond the date of expiry of the fixed term contract due to the mutually agreed continuation of the contract, as evidenced by the communications and the fact that the Complainant was never advised that the contract had been terminated. This is supported by the Complainant’s evidence to the Court on the matter. The Complainant’s maternity leave concluded in June 2017 and she expected to return to work. She was never advised otherwise. She resigned in October 2017. By virtue of the mutually agreed continuation of her contract after the expiry of her fixed term contract, she was still an employee of the Respondent at that time. Summary of Respondent Arguments Section 10(2) of the Maternity Protection Act 1994, (see above), is consistent only with the termination of the contract being on the expiry of the fixed term, unaffected by the Act. InMarketing Executive v Performance Arena ADJ-00011576,the Adjudication Officer held that ‘paragraph (a) of that subsection simply provides that the day on which the term expires is a day in the employee’s maternity leave, i.e. they are on maternity leave when they are dismissed. Paragraph (b) of that subsection provides that it shall not affect the termination of the employee’s employment’. While it may be a usual practice for fixed term contracts which expire during maternity leave to be renewed, this is not universal, and it is a conservative and precautionary practice by employers to minimise the risk of falling foul of the European Pregnant Workers’ directive. The application of Section 10(2) is a red herring. The Respondent’s acceptance of the application for protected leave by the Complainant was the action of an employer in discharge of a statutory duty or, in the alternative, the action of an employer in a discharge of a misperceived statutory duty. Neither extends the contract of employment beyond the mutually agreed cessation date of 31 December 2016. Evidence on Preliminary Issue Ms. Claudia Horeau Ms. Horeau is the Complainant. The witness told the Court in evidence that she had a contract with the Respondent with a commencement date in January 2015 and a concluding date of 31 December 2016. However, she stated that it was common in the particular sector for staff to be retained beyond their contract termination date if they could secure funding for the employer. She stated that from the date she joined the employment, she had never discussed her contract and that the only change made was in the rate of pay. The witness told the Court that she expected to return to work after her maternity leave expired on 26 June 2017 and she noted that in the P.45, given to her subsequent to her resignation, her final day of employment with the Respondent is shown as 18 June 2017. The witness noted that she had requested and had been granted additional maternity leave after 31 December 2016. She noted also that she had been paid for annual leave that had arisen in the first half of 2017. The witness noted that her representatives had been in communication with the Respondent during her maternity leave and that she had waited until October 2017 to resign when she had heard nothing from them. The witness said that she believed herself to be an employee on that date. Under questioning from the Court, the witness accepted that her contract stated an expiry date of 31 December 2016 and reiterated her earlier point about possible extension and about communications between the Respondent and herself subsequent to that date. The Relevant Law Unfair Dismissals Act 1977 Section 1 Definitions. “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, toterminate the contract of employment without giving prior notice of the termination to the employer, Maternity Protection Act 1994 Section 10 (2) Where an employee is employed under a contract for a fixed term and that term expires before the day which, apart from this subsection, would be the last day of her maternity leave, then— (a) notwithstanding any other provision in this Part, the last day of her maternity leave shall be the day on which the term expires; and (b) nothing in this Part shall affect the termination of the employee’s contract of employment on that day. Deliberation and Determination on the Preliminary Issue It is a fact that for a complainant to enjoy the protections of the Unfair Dismissals Act 1977, there must be a contract of employment in place at the date of the alleged dismissal. In this case of an alleged constructive dismissal, the definition of dismissal set out in ‘Definitions’ in the Act in (b) above is the definition that arises for consideration. This sets out that any such dismissal requires that there be a contract of employment. It is a source of disagreement between the parties in the instant case as to whether such a contract existed on the date of the Complainant’s resignation. The meaning and relevance of the Maternity Protection Act 1994 were debated by the parties in light of points made by the Complainant’s representative in support of her contention that she was still an employee, and regarded as such, after the expiry of her fixed term employment contract. This contention was disputed by the Respondent’s representative. On a literal reading, s. 10(2) of the Maternity Protection Act 1994 makes clear that the fact that an employee is on maternity leave does not have the effect of altering the expiry date of the contract itself. This is consistent with the ruling inMelgar v.Ayuntamiento de Los Barrios C-438/99 (2001) E. C. R. 1-6915,which interpreted the application of Council Directive 92/85 EEC of 19 October 1992. A relevant case in Irish case law is that ofMcBrierty v N.U.I. Galway EDA 091,which held that the non renewal of a fixed term contract of a pregnant employee cannot be regarded as a dismissal within the meaning of the Directive. The parties to the instant case, in a joint submission to the Court, drew attention to the case ofAssisco Assembly Limited v. Corcoran EED033/2003. That case’s main feature was to determine that in cases where pregnancy related dismissals are an issue, the onus of proving an absence of discrimination rests with the employer. This case is of little value to the Court in determining the preliminary issue, which the Court must consider. In the instant case, it is a legal fact that the Complainant’s maternity leave had no effect on the expiry date of her employment contract i.e. 31 December 2016. However, the Court has to consider what happened subsequent to that date to determine if the contract was extended by the parties. It is accepted by the Respondent in this regard that they continued to believe that the contract was extended by virtue of the Complainant’s maternity leave. For this reason, the Respondent continued to communicate with the Complainant and to act as if she was an employee in the period between 1 January 2017 and June 2017. The Complainant notes that, if it was the intention simply to extend the contract for this period, this was never communicated to her and that she had every reason to believe that her contract was being extended and remained in place up to and including the date of her resignation. The Court notes that in the submission on her behalf and in her evidence, the Complainant states that she was clear that she remained an employee until her resignation. On the other hand, it seems clear to the Court that there were issues between the parties such that it was obviously not the desire of the Respondent to have the employment relationship continue beyond the earliest date that it was possible for it to be terminated. The question for the Court is whether, by their actions, the Respondent gave effect to an extension of contract, notwithstanding their wishes. The contract expired in law on 31 December 2016 and can only have been extended if the actions of the parties created such a continuation. It seems self-evident to the Court that the Respondent did not seek to extend the contractual relationship any longer than they believed was required of them. There is no doubt that they were mistaken in law in continuing to act as if the Complainant was an employee after the expiry date of her contract and up to the end of her maternity leave. However, it is noteworthy that the Respondent ceased to communicate with the Complainant as if she was still an employee after her maternity leave expired and also that the date given by them in the P.45 as the final date of employment was in June 2017, when the Complainant’s maternity leave ended, (albeit on a date that was incorrect by a few days). Therefore, although the Respondent misunderstood and misapplied the law, it seems clear to the Court that if there was any extension of the Complainant’s contract, it was not intended to be, and was not, open ended. As the Complainant’s resignation took place after the expiry of her maternity leave, it is not necessary for the Court to reach any view about her employment status in the period January-June 2017. It is sufficient for the Court to note that nothing done by the Respondent in that period can be interpreted reasonably to mean that the Complainant continued to have an open ended employment contract beyond the end of her maternity leave. It follows, therefore, that when the Complainant submitted a subsequent letter of resignation she was not, in fact, an employee of the Respondent. A dismissal, constructive or otherwise, can occur only when there is an employment relationship. If there is no such relationship, neither the Workplace Relations Commission nor this Court has jurisdiction to hear a claim under the Unfair Dismissal Acts. That is clearly the situation in the instant case. The Complainant was not covered by the Unfair Dismissals Acts on the date that she submitted what she believed to be her resignation. The Decision of the Adjudication Officer is over-turned accordingly.
NOTE Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary. |
