Complainant

Respondent

Parties

Nadine  Hughes-Campbell

Tyco Ireland Limited  t/a Johnson Controls International

Complainant

Respondent

Representatives

Terence O'Sullivan , Solicitor of Terence J O'Sullivan Solicitors

M.P. Guinness BL instructed by Maria Gallagher ,Solicitor of Eversheds Sutherland

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00041249-001

25/11/2020

The issue in contention was the alleged non-renewal of the Complainant’s fixed term contract of employment by the Respondent employer. It was alleged that this non-renewal was directly linked to the pregnancy of the Complainant. It was alleged that no proper employment procedures, of any nature, were followed by the Respondent employer.

The Complainant was employed as a Due Diligence & Helpdesk Support Specialist on an monthly salary of € 3,266 for a 39-hour week.

The Employment began on the 25th February 2019 and ended on the 17th July 2020.

The Complainant presented a detailed Written submission supported by an extensive Oral Testimony from the Complainant.

The Complainant commenced employment on the 25th February 2019 as a Due Diligence& Help desk Specialist. It was a fixed Term contract due to expire on the 17th January 2020. The Fixed Term Contract was extended on the 14th January 2020 for a further six months to expire on the 17th July 2020. In January 2020 the Complainant found out that she was pregnant. While initially reluctant to tell her Manager, Ms. N. O’D, she was relieved by the positive approach of Ms. N. O’D who assured her that the Pregnancy would have no impact on any decisions to extend or not extend her contract.

The Complainant, a good Oral witness, was reassured that a Business Case had been made to the US Head Office by local Managers to retain her services. Her work output and quality were universally complimented. On the 17th June 2020 the Complainant submitted her Maternity Leave paperwork to the Employer. On the same day she was informed that her Fixed Term Contract was not being renewed. She was effectively dismissed. It was her strong contention that her non-renewal was due to her Pregnancy.

No proper Employment procedures were followed, and the entire situation of her Fixed Term contract was replete with technical breaches of the Protection of Employees (Fixed Term Work) Act 2003 and also Section 23 of the Maternity Protection Act 1994 which specifically prohibits any Termination or Suspension of Employment while an employee is on maternity related leave. References were made to a new Recruit in China who was doing a lot of the Complainant’s work. References were also made, in support, to E C of J rulings specifically the land mark case of Melgar v Ayuntamiento de Los Barrios (C-438/99) [2001] which made strong rulings protecting employees who were pregnant.

The Respondent presented a comprehensive Written submission supported by an extensive Oral Testimony from Ms. N. O’D, the Complainant’s Line Manager.

The Respondent made an opening legal argument in relation to the jurisdiction of the Adjudication Officer. The Ending of a Fixed Term contract is referenced in Section 1(c) of the 1977 UD Act and Section 2(2)(b) where the ending of a fixed term contract on the normal expiry of its term is not deemed to be an Unfair Dismissal.

In this case a Fixed Term Contract came to its natural end on the 17th July 2020 and on this basis, there can be no legitimate claim of Unfair Dismissal. Accordingly, the Adjudication officer can have no proper jurisdiction. All Contacts and supporting letters were exhibited in evidence.

Notwithstanding this opening argument the Respondent outlined the severe impact that the Covid 19 pandemic had on the worldwide business of the Employer. On the 31st March 2020 the overall CEO issued a letter to all employees globally which outlined the coat saving measures that the Company was introducing to help mitigate the impact of the Pandemic. This included a Hiring freeze and a “significant decrease in contractor spend and any contingent workforce”.

The Oral Testimony of Ms.N.O’D acknowledged that a business case had been in train and had been sent to US Head Office to retain the Complainant. Unfortunately, this business case been overtaken by the Covid situation and the CEO Directive. The only possible course of action authorised was to allow the Fixed Term contract to expire naturally. It was a most unfortunate situation but the only possible outcome. Extensive e mail traffic between the Parties especially between the Complainant and Ms.N. O’D in June and July 2020 was exhibited in evidence. Ms.N. O’D was extensively cross examined by the Complainant Legal Advisor.

The new hire in China was a unique situation based in China and required a fluent local Chinese language competency. It was not comparable to Ireland.

In final summary the Respondent pointed to the details of Section 2(2) of the UD 1977 Act. The Contract was in writing, was signed by both Parties and contained a statement that the UD Act would not apply to the normal expiry of the contract.

Accordingly, the Act cannot apply to this case, notwithstanding the major impact of the Covid situation and the CEO Global Directive.

3:1         Legal Position.

The Respondent Representative argued strongly that Section 1 and in particular Section 2(b) of the UD Act,1977 applied primus inter pares so to speak. It is quoted below.

Unfair Dismissals Act,1977 Section 2(2)(b)

( b) dismissal where the employment was under a contract of employment for a fixed term or 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) and the dismissal consisted only of the expiry of the term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.

The Complainant’s Legal Representative pointed to the Protection of Employee (Fixed Term Work) Act 2003 - and Section 8(1) and Section 23 of the Maternity Protection Act, 1994 is support of a prohibition on the ending of employment during or related to Pregnancy. Extensive ECJ rulings were cited especially the landmark Melgar case (c-438/99) [2001] ECR 1-6915.

The Respondent Representative strongly pointed out that the case referred -CA-00041249-001- was solely under the UD Act,1977 and as such was the only case they had to answer. It was not reasonable to expect them to address issues in other pieces of Legislation that were not relied upon in the stated complaint. Conversely the Complainants’ Legal Representative argued that the general body of case law and precedent required the Adjudicator to have regard to the general background and “Reasonableness’’ of the Employer. In this context the other pieces of Legislation offered headline guidance that identified procedural shortfalls in the Respondent case.

The issue is discussed extensively by Desmond Ryan in Redmond on Dismissal Law ,3rd Edition, Bloomsbury 2017, at Paragraphs 23.75 -81. In the case law referenced by Ryan the balance seems to lie with the Respondent employers where there is no obvious effort to frustrate the Act by successive fixed terms and especially where the contract is as set out in the procedural steps Act, i.e. is in writing, duly signed and has an exclusion clause.

None the less and legal references considered all cases rest on their own evidence and factual background and these must be considered below.

3:2        Consideration of the Evidence both Written and in oral Testimony.

As the balance of proof initially rests with the Respondent the crucial evidence was given by Ms.N. O’D the former line Manager for the Complainant. Ms.N. O’D was a capable and competent witness.

In her evidence, it has to be noted that, first of all, there was absolutely no personal animosity between Ms.N. O’D and the Complainant. The Line Manager had welcomed the Complainant’s Pregnancy news. A Business case had been forwarded to Head Office in the United States seeking to have the Complainant renewed. She was deemed to be a very valuable member of the local team.

Various Senior Managers in the United States were referred to. It was absolutely clear that the Non-Renewal decision came from the United States.  The Global CEO had issued a set of Covid response plans on the 31st March 2020 and the non-renewal of temporary or fixed term contracts was part of these. Decision making executives, based in the United States, were not going to go against these. The issue of the Pregnancy of the Complainant did not appear to have featured, either negatively or positively, in any considerations. Local Irish based Managers had argued in favour of the retention of the Complainant.

Obviously, none of these United States based Managers gave evidence and it was necessary to rely on Ms. N’O’D’s sworn evidence of her interactions with them.

The example quoted of a new hire in China was discussed- this was a particular local Chinese Language issue and did not have comparability to Ireland.

The Complainant’s Fixed Term Contract satisfied the three requirements of the UD Act,1977, Section 2(2)b, it was in writing, had an exclusion clause and was duly signed by all parties.

Accordingly, the exemption favours the Respondent and the claim has to fail.

The broader reasonableness & pregnancy issues and ECJ case law raised by the Complainant’s Legal team, while most interesting, are matters for another case and would have to be argued there.

In this case CA -00041249-001 -Section 2(2) (b) applies and the complaint cannot be considered under the Unfair Dismissals Act,1977.

Fixed term Contracts, Unfair Dismissals Act exemptions, Section 2(2)(b) of the Act.