Complainant

Respondent

Anonymised Parties

A Migrant Rights Community Organisation Coordinator

A Migrant Rights Community Organisation

Representatives

  In person

Tommy Cummins,  Adare Human Resource Management

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-00036412-001

29/05/2020

The Complaint is that an unfair dismissal occurred when the Respondent failed to renew a fixed term contract.

The Complainant worked for the Respondent as a Community Migrant’s Rights Coordinator. The Respondent is a Community Migrant’s Rights Organisation with charitable status. The objectives of the Respondent are, inter alia, to improve services for migrants who live, primarily, in urban areas.

Prior to being employed with the Respondent the Complainant worked in a volunteer capacity with the Respondent while at the same time was working in a permanent position within the health care services. The work of the Respondent was known to the Complainant and, being a migrant,  he was very committed to the aims and endeavours of the organisation. When an employment opportunity with the Respondent became available the Complainant was keen to obtain the position, however he was reluctant to leave his secure job in health care, for what on paper at least, was a one-year fixed term contract. He discussed this matter with the (then) CEO of the Respondent who assured him that the post was publicly funded for the next three years and he would be automatically re-appointed each year for the remaining three years of the contract, regardless of what was on paper.

The Complainant took up the position with the Respondent on 7 January 2019. The written terms and conditions of the post indicated that the post was a fixed-term contract and would end on 31 December 2019. When he saw the written contract he spoke to the HR manager who also assured him, as had the CEO, that he could simply reapply after 31 December 2019 and, as the holder of the post,  he would be automatically re-appointed.

The Complainant started the job on 7 January 2019 and was very productive. Throughout 2019 he succeeded in ways that his predecessors had not and he was very happy doing the work.

Half way through the year the (then) CEO of the Respondent left the employment, in acrimonious circumstances.  Following this, the replacement new CEO met with the Complainant and informed him that the work of the Respondent was being re-structured and that his post would come to an end on 31 December 2019, however a new role would be created and the Complainant was entitled to apply for it.  The Complainant explained that an assurance had been given to him that he would be kept on after the end of the fixed term to which the new CEO told him to apply for the new role and that “the job is yours, all you have to do is to apply.”

The Complainant was given formal notice in November 2019 that his fixed term would end on 31 December 2019 but he was not concerned about this given the level of assurance that he received. He trusted those assurances. He travelled home to his country of birth at Christmas fully expecting that on his return, following an interview, that he would be re-engaged with the Respondent.

The Complainant accepts that the fixed term contract came to an end on 31 December 2019 and that his employment ended at that point in that he no longer worked for or was paid by the Respondent. He applied, as instructed, for the new post and was interviewed in January 2020. However,  his application was unsuccessful and the position was offered to another applicant.

The Complainant believed that he should have been retained in the new role and that he would never have left his permanent health care job in the first place, for a one-year fixed term contract.

In terms of the jurisdictional point raised by the Respondent and the necessity for him to have completed one- year of continuous service with the Respondent, the Complainant contends that he was a volunteer with the Respondent from October 2018, for which he was not paid a salary but was paid expenses.

The Complainant also contended that neither the funding agencies nor the board of the Respondent were made aware of the new CEO plans to restructure the organisation.  When he approached the board members to discuss this, they knew nothing of the restructure plans. It is the view of the Complainant that the new CEO restructured the roles within the organisation in order to ensure that anyone connected to the former CEO could be side-lined and be pushed out of the organisation. This deliberate side-lining pertained mainly to African employees.

The Complainant contends that the position that he held, enjoyed guaranteed public funding for three further years and that the CEO could not restructure the organisational roles mid-stream. He contends that this was all a ruse by the CEO and that the ostensible re-structuring was an artificial device to ensure that his employment with the Respondent was terminated.

The Respondent made a preliminary application that the WRC had no jurisdiction to hear the complaint on the basis that the Complainant did not have continuous service of one year, this is a jurisdictional pre-requisite of a complaint under the Unfair Dismissals Act 1977- 2018.

The Respondent points to the fact that the Complainant accepts, although he disputes the fairness of it, that his paid employment with the Respondent started on 7 January 2019 and ended on 31 December 2019 (and that this included a notice period.) Any work done prior to his employment, on a voluntary basis is not employment and may not be relied on to add to the period of employment, the term of which is not in dispute.

It is not accepted by the Respondent that any assurance was given to the Complainant that the fixed term of his employment would be renewed, however, even it were (which is denied) there is no dispute that the Complainant was not employed by the Respondent for one year. Consequently, there is no jurisdiction for the WRC to consider this complaint.

The allegations of anti-African bias is denied and the CEO gave evidence that there were many African staff within the organisation and that he himself is African-born.

A second preliminary application is that the Complainant was not dismissed but rather his employment was terminated as a result of the operation of a fixed term contract.

All other submissions of fact are also denied by the Respondent.

Section 2 (1) of the Unfair Dismissals Act 1977-2018 states:

This Act shall not apply in relation to any of the following persons:

(a)    An employee… who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him and whose dismissal does not result wholly or mainly from the matters referred to in section 6 (2) (f).

Section 6 (2) (f) of the 1977 Act (as amended) refers to dismissals made on the following discriminatory grounds (which are deemed to be automatically unfair – regardless of service) trade union membership; pregnancy related reasons, reasons related to maternity/parental or carer’s leave or making a protected disclosure.

Work on an unpaid and voluntary basis does not constitute employment for the purposes of the Unfair Dismissals Act. The Complainant accepts that he was employed by the Respondent for less than one continuous year prior to being dismissed and therefore it is only if the Complainant could prove that his dismissal occurred on grounds set out in section 6 (2) (f) (which he did not allege) that he could avoid the jurisdictional block on bringing this claim.

If he had wished to bring a complaint for discriminatory dismissal on grounds of race, which was referred to but not evidenced, this remedy was available to him under the Employment Equality Act 1998 however that is not the complaint that was brought, pursued or proven by the Complainant.

As section 6 (2) (f) of the Unfair Dismissals Act does not apply and as the Complainant has less than one year’s continuous service with the Respondent, I find that there is no jurisdiction for the WRC to adjudicate upon this matter and that the complaint is not well founded.

As the first preliminary application brought by the Respondent succeeds, it is not necessary to decide on the merits of the second preliminary application, that the Complainant was not dismissed but rather his contract was terminated by operation of a fixed term contract.

For the reasons cited above I find that this complaint to be not well founded

Unfair Dismissal – Service of less than one year – preliminary application on jurisdiction – whether automatic dismissal exception (section 6 (2) (f) of 1977 Act) applies.