ADJ-00030967

Complainant

Respondent

Parties

George  McGrath

Department of Foreign Affairs

Representatives

  Self-Represented

Mr. Desmond Ryan BL, instructed by Ms. Karen MacNamara, Chief State Solicitor's Office

Act

Complaint Reference No.

Date of Receipt

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

CA-00041370-001

02/12/2020

The Complainant commenced employment with the Respondent on 3rd July 2017. Throughout his employment the Complainant was a permanent, full-time employee. The Complainant received a weekly payment of €684.17. The employment terminated on 27th June 2020.

On 2nd December 2020 the Complainant lodged the present complaint with the Commission. Herein, he alleged that the Respondent failed to pay him his contractual notice payment on the termination of his contract, in contravention of the Act. In disputing the complaint, the Respondent submitted that the Complainant’s employment was terminated on foot of a specific purpose set out in the contract of employment, and that in such circumstances the Complainant is not entitled to statutory or contractual notice.

A hearing in relation to this matter was convened and finalised on 4th August 2021. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the Workplace Relations Commission as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing. Both parties issued extensive submissions in advance and expanded upon the same in the course of the hearing. The parties were also invited to issue a submission in relation to an authority opened by the Adjudicator in the course of the hearing. In circumstances whereby the parties were not in dispute as to the factual matrix of the complaint, neither called a witness to give evidence and the matter was dealt with on submission only. 

At all times, the Complainant was employed as a ministerial driver by the Respondent. The Complainant entered into a contract of employment with the Respondent on 3rd July 2017 and commenced employment on that date.

This contract stated that “your term of office will cease on the date the Minister ceases to be a Minister of the Government”. The contract also stated that “your appointment is co-terminus with that of the Minister”.  Notwithstanding the same, the contract further stated that “the appointment may be terminated at any time by either side in accordance with the Minimum Notice and Terms of Employment Act 1973-2005”. 

On 27th June 2020, the Complainant’s contract of employment was terminated in accordance with the above-mentioned provisions. The Complainant submitted that the Act provides that in circumstances whereby an employee has accrued two years of services, they are entitled to two weeks’ notice of the termination of their employment. In such circumstances, the Complainant submits that he is entitled to two weeks’ remuneration in lieu of said notice. The Complainant further referred to the “Guidelines on best Practises for the Recruitment and Management of Fixed Term Employees in the Irish Civil Service” which states that “the fixed term employee must be given, and give, the necessary notice as required by the Minimum Notice and Terms of Employment Act 1973-2005”.   

In conclusion, the Complainant submitted that his contract of employment contained an ambiguity in that it expressly provides for notice in one section and implies that notice is not payable in another. Having regard to the foregoing, the Complainant submitted that the “contra proferentem” rule should apply, and the clause should be construed strictly against the person that provided the wording.

By Response, the Respondent denied the complaint. They submitted that the Complainant, a ministerial driver, was employed pursuant to a fixed-term contract, for a specified purpose, which expressly notified the Complainant form the outset that his termination date would be the date on which the relevant minister’s term of office expired. They submitted that in such circumstances the termination of the Complainant’s employment would not attract any notice entitlement pursuant to the Minimum Notice and Terms of Employment Act 1973-2005 or at all.

In support of this position, the Respondent referred to Section 3 of he contract which states that,

“…your term of office will cease on the date the Minister ceases to be a Minister of the Government”.

The Respondent then referred to the wording of Section 4 of the Act, which provides that an employer shall give statutory notice “in order to terminate the contract of employment”. It was submitted that clause 3 of the contract of employment provides for an automatic termination on the date that the Minister ceases to be a Minister of the Government. In such circumstances, Section 4 of the Act does not apply as there is no basis on which the employment requires notice in order to be terminated. The Respondent submitted that such termination is automatic and co-terminus with the cessation of the Minister’s office.

The Respondent referred to Clause 4 of the Complainant’s contract which states that, “…your contract is on a fixed-term contract basis only as your appointment is coterminous with that of the Minister…”. The Respondent referred to the definition of “fixed-term employee” set out in the Protection of Employees (Fixed-Term Work) Act 2003, which provides that such an employment exists where, “the end of the employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event”. In light of the foregoing, it was submitted that such wording clearly signifies that no notice entitlement accrues when a fixed term contract expiries by operation of the contract.

The Respondent also referred to clause 5 of the contract of employment, which states that, “the appointment may be terminated at any time by either side in accordance with the Minimum Notice and Terms of Employment Act 1973-2005”.  Having regard to the same, the Respondent submitted that the terms of the Act would apply in circumstances whereby either they or the Complainant elected to terminate the contract, but had no application in circumstances whereby the contract terminated that the expiry of the specific purpose.

In answering the Complainant’s submission in relation to the principle of contra proferentem, the Respondent submitted that no ambiguity existed between the Complainant’s contractual terms. It was further submitted that principle relates to interpretation of ambiguity in respect of contractual terms, and is of no relevance to the question of a statutory entitlement.

This complaint relates to the non-payment of a statutory notice payment the Complainant alleges is due and owing. In this regard, Section 4(1) of the Act provides that,

“An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.”

It is common case that the Complainant was engaged on a specified purpose contract, the specified purpose in question being the continued employment of a Minister of Government. It is also agreed between the parties that the Complainant’s employment terminated on the expiry of the specified purpose and in accordance with the relevant contractual principles regarding the same.

In the matter of QQI v- Claire O’Neill MND1914, the Labour Court held that,

“The essence of a fixed-term contract is that it comes to an end without the intervention of either party (See Nerney v Thomas Crosbie Holdings Limited [2013] 24 E.L.R 238). Consequently, there is no requirement for notice prior to its expiry as such notice is given at the commencement of the contract.”

In answer to a question, the Complainant confirmed that he was aware of the nature of the role, and the somewhat unusual manner in which it may be terminated, from the outset of the employment. I also note that the contract itself is clear and unambiguous on this point, with the Complainant referring to the relevant sections in his submission.

It is the Complainant’s submission that, notwithstanding the foregoing point, he was entitled to statutory notice on foot of clause 5 of his contract. This clause states that “the appointment may be terminated at any time by either side in accordance with the Minimum Notice and Terms of Employment Act 1973-2005”.  The Complainant submitted that this clause expressly provides for statutory notice on the termination of his employment. In this regard, I note that the contract states that notice is payable on the termination of the contract by “either side”. This section relates to either the Complainant resigning his employment, or the Respondent dismissing the Complainant. In such circumstances the Complainant would clearly be entitled to a notice payment. However, in the present case, that is not what occurred. Rather, the Complainant’s contract was terminated by the expiry of a specific purpose, in keeping with the definition set out in the Protection of Employees (Fixed-Term Work) Act 2003. Having regard to the foregoing, I find that the this contractual provision does not apply as the contract was not terminated by either side but by function of the contract itself.

In circumstances where the Complainant was engaged on a specified purpose contract, the contract in question terminated on the expiry of said specified purpose and was not terminated by either of the parties, I find that the Act was not contravened and consequently the complaint is not well-founded.

I find that the Act was not contravened and consequently the Complainant’s application fails.

Fixed-term, specified purpose, notice