FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : CNAG TEORANTA - AND - MR CATHAL MCCARTHY DIVISION :
SUBJECT: 1.An appeal of an Adjudication Officer's Decision No ADJ-00026727. Mr. McCarthy, ‘the Complainant’, was employed by CnaG Teo., ‘the Respondent’, on a Community Employment scheme from September 2017 to August 2019. The Complainant had a dispute with the Respondent that was the subject of a Recommendation from the Workplace Relations Commission, ‘WRC’, in July 2019. He was not given a further contract in August 2019. The Complainant took a complaint under the Unfair Dismissals Act, ‘the Act’, to the WRC. The Adjudication Officer, ‘AO’, upheld his complaint. The Respondent appealed to this Court. Note; The Court made clear to the parties that the issues which had been the subject of the earlier Recommendation by the WRC were not relevant to the within proceedings. The only issue for the Court to consider was whether the termination of the Complainant’s employment was fair or unfair. Summary of Respondent arguments. The Complainant was employed under the Community Employment scheme for two years. In accordance with the terms of the scheme, there was no obligation on the Respondent to provide a third year of employment. The scheme rules provide that the Respondent ‘may’ do so and not that the Respondent ‘shall’ do so. The Respondent no longer had a job for the Complainant and, simply, exercised its right not to award him a further contract. The Complainant was not dismissed. His entitlement was only for two years’ employment. The Respondent operated under the scheme in three different locations. The job done by the Complainant was filled by moving somebody from another location. It was never advertised publicly. Summary of Complainant arguments. The Complainant was dismissed because of what had happened between a named staff member and himself, which was the subject of proceedings at the WRC. It is not true that there was no work for him at the end of his second one year contract. His job was filled, there was no reduction in the numbers on the scheme and the Respondent advertised subsequently for week-end cover for the job. This advertisement took the form of all advertisements of positions under the scheme, which are never advertised in the public press. The Complainant was told when he was taken on that if he pursued an educational qualification he would be kept on for a third year. He pursued the relevant qualification, which would have enabled him to be kept on under the scheme rules, but he was dismissed. The Complainant’s gross pay under the scheme was €269 per week. He has been unemployed since his dismissal, in which time he applied for a total of three jobs. The applicable law. Unfair Dismissals Act 1977 to 2015. 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, to terminate the contract of employment without giving prior notice of the termination to the employer, or (c) 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 Unfair dismissal. 6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. Redress for unfair dismissal. 7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court , as the case may be, considers appropriate having regard to all the circumstances: ( a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or ( b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or ( c ) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership. Deliberation As provided for in s.6 of the Act, a dismissal is unfair unless there are substantial grounds to justify it. Therefore, the burden of proof to establish that a dismissal was not unfair rests with the employer. In this case, the Respondent told the Court that the terms of the Community Employment scheme provide discretion to an employer as to whether an employee is kept on for a third year. The Court was not provided with these terms by the Respondent and ,therefore, cannot offer any observations as to the validity or otherwise of this assertion. The Respondent argued that the terms of the scheme only guaranteed two years of employment but, again, no documentary evidence was provided that would enable the Court to determine the veracity of this assertion. When asked by the Court, the representative of the Respondent could not answer to confirm or deny whether the Complainant had pursued the relevant course saying that he was not aware, either way. The Respondent was equally unconvincing regarding the advertisement of a role at week ends for parts of the Complainant’s role, in circumstances where the Respondent argued that there was no ongoing work to justify the retention of the Complainant. The Court is conscious that neither party was represented and sought to provide assistance to both parties to enable them to make their case. However, the Court cannot make a party’s case for them, something that appeared not to be understood by the representative of the Respondent, on whom the burden of proof rests. The Respondent did not produce for the Court any documentary details of the relevant contract or contracts of employment to support the assertion that these were for the periods identified only so that, as a consequence, the terms of the Act are not applicable. No documentary details of the scheme were produced in support of the argument that the Respondent had complete discretion as to whether or not the Complainant was entitled to be retained in employment for a third year. The Respondent provided no details of the numbers on the scheme that could support the assertion that there was no longer any work available for the Complainant. The Respondent also failed to produce any documentary evidence to explain the process for the engagement of employees in response to the argument that the week end aspect of the Complainant’s role had been advertised. On the basis of what was provided to the Court it is not possible for the Court to be satisfied that the Respondent was entitled not to renew the Complainant’s contract. Therefore, the Court has to conclude that the Complainant was dismissed. As he was dismissed without any due process, it follows that the dismissal is unfair. The Complainant indicated that his preferred remedy was re-instatement. However, the Court is not satisfied that, in view of the break down in the relationship between the parties, it would be in the best interests of either party to provide for either re-instatement or re-engagement. The Court notes that, in almost two years since his dismissal, the Complainant admits to applying for a total of three jobs. This falls way short of the requirement on dismissed employees to spend part of every working day seeking alternative employment and this has to be reflected in the amount of compensation that the Court can award in accordance with s.7 of the Act. Taking all factors into account the Court concurs with the view of the Adjudication Officer that the appropriate award is €4000 in compensation to be paid by the Respondent to the Complainant. Determination The Decision of the Adjudication Officer is upheld.
NOTE Enquiries concerning this Determination should be addressed to Sinead O'Connor, Court Secretary. |
