Complainant

Respondent

Parties

Dariona  Nic Dhonnacha

Udaras Na Gaeltachta

Representatives

Marc Fitzgibbon Lavelle Partners

Alastair Purdy Alastair Purdy & Co. Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00041292-001

27/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00041292-002

27/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00041292-003

27/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00041292-004

27/11/2020

On 23rd May 2016, the Complainant commenced employment with the Respondent as

part of a publicly supported training programme and was employed initially for a 12 month period. She was subsequently engaged on a number of successive fixed term contracts, the sixth of which expired on 30th June 2020. She is claiming that she became entitled to a contract of indefinite duration on 6th May 2020, after the end of the fifth fixed term contract, and that she was unfairly dismissed following the conclusion of the sixth fixed term contract on 30th June 2020. The Respondent denied that she was dismissed and claimed that she voluntarily left her employment.

The Complainant’s representative stated in the first instance that none of her fixed term contracts contained any provision which provided that the Unfair Dismissals Acts shall not apply to a dismissal consisting only of any expiry of that contract’s fixed term and that even if her contract was for a fixed term, the termination of her employment was subject to the requirements of the Act.

Having been initially employed on a series of fixed term contracts since she started with the Respondent in 2016, the Complainant commenced her fifth fixed term contract on 5 August 2019 as Maternity Cover for the Financial Officer for Grants and Creditor Payments. This contract expired on 5 May 2020. Before the contract expired, the Respondent offered her a sixth fixed term contract on the same terms and conditions with an expiry date of 30 June 2020. Before accepting the sixth contract, the Complainant inquired of the Respondent as to what her position would be at the end of that contract and was informed that she would not be dismissed but would have options to continue her employment presented to her.

The Complainant‘s contention that she was unfairly dismissed was rejected by the Respondent. It was submitted that the Complainant resigned from her role despite being offered an alternative position within the organisation. As a result, her claim pursuant to the Unfair Dismissals Acts should fall to be determined under Section 1 (1) of the Act. Thus, the onus of proof rests with the Complainant to prove that she was subject to unreasonable behaviour and/or subject to a breach of contract and (2) that she availed of all internal procedures prior to resigning from her role.

Without prejudice to the above, the Respondent also stated that at no stage was it their intention to terminate the Complainant’s employment, which was supported by the fact that Complainant was offered a suitable alternative role

CA-00041292-001, CA-00041292-002 and CA-00041292-004:

The Workplace Relations Act 2015 at section 41, in relevant part, provides as follows

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

 8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

FINDINGS:

I note the Complainant’s assertions that the alleged contraventions of this Act occurred on 6 May 2020 and that the complaint was referred to the WRC on 27 November 2020. In the absence of any reasonable cause having been presented to explain why the complaints were not referred within the six month period beginning on the date of the contravention, I find that I do not have jurisdiction to hear these complaints.

CA-00041292-003:

The Law

The Act at Section 1(b) defines constructive dismissal in the following manner

• “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,”

Discussion and Conclusions

Dismissal as a fact is in dispute and consequently it is for the Complainant to establish that her employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act at Section 1 above. That section of the Act, and the case law since its enactment, has established two circumstances where an employee is entitled, or it would be reasonable for him or her, to terminate the employment relationship.

Contract Test

Firstly, in circumstances where the employer’s conduct amounts to a repudiatory breach of the contract of employment, the employee is entitled to regard himself or herself as having been dismissed. This is often referred to as the “contract test”. It was described by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332as follows:

• “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance.

In plain English, this means that where an employer makes a fundamental breach of an essential term of the contract of employment, the employee may consider him or herself to be constructively dismissed.

Reasonableness Test

Secondly, an unlawful constructive dismissal may arise where an employer’s behaviour is so unreasonable as to mean that the employee is left with no reasonable alternative but to terminate his or her employment. This test of reasonableness, when applied to the within matter, asks whether the employer conducted its affairs in relation to the employee so unreasonably that the Complainant could not fairly be expected to put up with it any longer.

In this context, the Complainant must establish that she also conducted herself reasonably in terms of affording the employer the opportunity to address the issue which ultimately led to the termination of the employment.

In the instant case, the Complainant alleged that the Respondent fundamentally breached the reasonableness test set out above. In the first instance, it was highlighted that the salary package on offer was significantly less than what she had been earning when she was employed on the fifth and sixth fixed term contracts.  While there is no doubt that the salary on offer represented a significant reduction from what the Complainant earned while she was engaged on the two previous contracts, it must be recognised that both of these were only temporary in nature, involved cover for the same maternity leave position and that the Complainant successfully applied for and began working in this role prior to having completed her fourth fixed term contract. In addition, I note that it is not uncommon for employees to assume the role of a superior while she may be on maternity leave and revert back to their previous role on the return to work of the superior following completion of the maternity leave period. I also noted, crucially in my view, that the remuneration proposed in the seventh fixed term contract represented only a slight reduction from what she was paid while working on the fourth fixed term contract on 4th August 2019, which was less than 11 months before the seventh fixed term contract was due to begin on 1 July 2020, and do not find that the salary offered was therefore unreasonable.

In addition, it was alleged that the offer of alternative employment was made very belatedly and that the Respondent added extra stipulations to the new proposed contract of employment, wherein the Complainant would now be required to sit and pass accountancy exams even though she was already studying for a higher diploma in Irish. This was at odds with any of the previous contracts she had where she was not required to complete such exams. While I accept that the offer of a seventh fixed term contract of employment was only communicated to her very belatedly on 26th June 2020, four days before her sixth fixed term contract was due to expire,  I noted that the Respondent agreed to give her an extra week to think about accepting the offer, although I recognise that this extension of time was also communicated very late in the day, specifically in an email at 16 27hrs on 30th June. Despite this extension of time having been given, which allowed the Complainant to reflect on the offer until 7th July, I noted that a subsequent email from the HR Manager sent at 16 57 hrs on 30th June, which can only have been caused by a communications breakdown as a result of the Respondent’s belated decision making, clearly suggested that she would be finishing that day and led the Complainant to believe that her employment had been terminated on 30th June 2020.

I find that, notwithstanding both the very belated actions of the Respondent and the aforementioned communications breakdown, the decision of the Complainant to finish up her employment on 30th June on the basis of the email from the HR Manager was unreasonable. Specifically, I find it incomprehensible that she failed to inquire of the HR Manager why she had sent the aforementioned email at 16 57 hrs when another email sent only 30 minutes before had indicated that the Respondent would be giving her an additional week to reflect upon whether or not she wished to take up the new contract.  In addition, I cannot understand why the Complainant did not seek to arrange a meeting or even have a telephone conversation with the HR Manager, who had indicated in her email of 14 19hrs that she was available to discuss the proposed seventh fixed term contract, especially when she stated in evidence that they had a good working relationship. While I noted, when questioned about this, that the Complainant wanted to have everything in writing as a result of a previous misunderstanding at a meeting on May 6th 2020, I believe that a conversation with the HR Manager could have resolved the outstanding issues and that this could have been followed up by an email which clarified what the Complainant understood from the conversation.  Such an interaction could also have addressed the understandable concerns that the Complainant had around having to sit accountancy exams, which had not been stipulated in any previous contract but was included as a requirement in the proposed seventh fixed term contract of employment. Indeed, I noted from the email send by the HR Manager at 14 19 hrs on 30th June that there was some flexibility around this requirement, which the Complainant could and should have explored, although I once again recognise that such understanding was only shown by the Respondent at the eleventh hour.

While it is regrettable that an end came to an employment relationship which both parties clearly wanted to continue, I find that, notwithstanding the many belated actions outlined above, the Respondent’s conduct did not amount to a repudiatory breach of the contract of employment and that the behaviour of the Complainant in leaving her employment without adequately engaging with the Respondent around the proposed seventh fixed term contract was unreasonable. Accordingly, I must find that the Complainant was not unfairly dismissed.

CA-00041292-001, CA-00041292-002 and CA-00041292-004:

I do not have jurisdiction to hear these complaints for the reasons set out above.

CA-00041292-003:

I find that the Complainant was not unfairly dismissed for the reasons set out above.