Complainant

Respondent

Parties

Albert  Kelly

Iarnrod Eireann Irish Rail

Representatives

Neil Rafter BL instructed by  Burns Nowlan Solicitors

Ms Vicky Burke, Employee Relations Executive

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-00047861-001

23/12/2021

The complainant is a qualified mechanic. His job title is Multiskilled Shift Craftworker. His net weekly salary was €776. He commenced employment on 1st July 2019 on a fixed term contract for a term of 24 months. The contract was signed by both parties and included an Unfair Dismissals Act exclusionary clause on expiry of the term. The complainant was given several weeks verbal notice that the contract would expire at the end of the fixed term. The parties disagree on the date of dismissal. The complainant alleges unfair dismissal.

The respondent was invited to make an opening statement. The employee relations representative read the respondent submission, before taking the fleet manager through his evidence.

Examination-in-Chief

On 17th May 2021, the fleet manager met with the complainant and advised him that his fixed term contract would expire in a few weeks as per the terms of the contract. Before concluding the meeting, he gave feedback regarding the complainant’s interpersonal skills.

Several trams were due to be delivered in 2021, but due to COVID-19 the delivery of the trams was continuously delayed. There was no business case or approval to increase headcount in 2021. Although the overall headcount at the depot did not increase until 2022, positions were advertised and filled in 2021 due to turnover.

Rosters continue over a four-week rolling period. The fleet manager did not remove the complainant’s name from the July roster because he thought it was best to allow the complainant to advise his colleagues that his contract was coming to an end.

A few days after the meeting of 17th May, the fleet manager met the complainant outside the canteen. He told the complainant that he was not ignoring his email of 21st May and that he was free to contact HR.

The fleet manager clarified for me that the complainant’s fixed term contract should have expired on 30th June 2021. It was a mistake to state an end date of 1st July 2021. The complainant was not rostered to work 1st July 2021. When he attended for work on 2nd July 2021, he was advised to leave as he was no longer employed by the company as his contract had expired. Eight craft positions were open around the time of the expiry of the complainant’s contract. He cannot be sure if these were offered on a permanent or fixed term basis. The roles were the same or like the work being performed by the complainant. These vacancies were advertised on notice boards and circulars. The complainant did not apply for any of them. The fleet manager did not discuss these vacancies with the complainant at any time.

Cross Examination

The fleet manager confirmed that the complainant reports into a team lead. The team lead reports into the depot manager, who in turn reports into him.

The issue of the complainant’s interpersonal skills requiring improvement arose from feedback the fleet manager was getting. It was relayed to the complainant for developmental reasons only. There was no complaint from the other managers in relation to the complainant’s interpersonal skills. The fleet manager conceded that the mentioning of the interpersonal skills issue in a meeting to give notice on the termination of contract might be viewed as if both were connected, however, the interpersonal skills issue was not the reason for termination of the contract.

An email dated 21st May 2021 from the complainant to the fleet manager was opened. The fleet manager denied that this email required him to respond or to act. He understood that the complainant was raising his concerns about the feedback on his interpersonal skills with HR. The manager did not recall saying he would follow up on the matters raised in the email. The fleet manager disagreed that it was wrong to dismiss the complainant when a grievance was live.

The fleet manager did not issue written notice of the pending expiry of the complainant’s fixed term contract as he assumed HR would do this. His superior and the depot manager knew the complainant was leaving on the expiry of his contract.

A letter dated 2nd July 2021 was opened. The fleet manager denied this letter was sent after the contract had been renewed but was issued to confirm the date of termination as 1st July 2021 given the confusion which arose when the complainant attended for work on 2nd July 2021.

Closing Arguments

The complainant was not unfairly dismissed. He exited the company as per the terms of his fixed term contract. The respondent cited the case of O'Donovan and Over-C Technology Limited [2020] IEHC 291 in support of the argument that the complainant left the business on a no-fault basis and accordingly, was not unfairly dismissed.

Complainant’s Written Submission on Loss & Mitigation

In response to the complainant’s written submission on loss and mitigation, the respondent argues that the efforts of the complainant to mitigate his loss does not meet the requirements as set out in Sheehan V Continental Administration Co Ltd (UD858/1999).

Following an opening submission, counsel for the complainant took the complainant through his evidence.

Examination-in-Chief

The complainant was unaware that there were any issues concerning his interpersonal skills. At no time during his employment were any concerns brought to his attention or was he ever disciplined. The first time he heard of concerns regarding his interpersonal skills was at the meeting of 17th May 2021.

At a meeting with the fleet manager on 17th May 2021 he was told that HR would not be renewing his contract. At this meeting he was also told that HR had a problem with his interpersonal skills. On querying what was meant by interpersonal skills, the manager explained “how I get on with people”. The complainant was very surprised to hear this and understood that the fleet manager was going to investigate what the precise issue was regarding his interpersonal skills.

During his employment, he raised safety issues as per company procedure and he was encouraged to do this. However, he believes that it is the raising of these issues that relates to the concern around his interpersonal skills.

The complainant felt the manager had given him several weeks’ notice for a reason. That he was giving him time. The complainant sent an email to the fleet manager following the meeting. In this email dated 21st May 2021, he expressed his thanks for several weeks’ notice but also the distress the feedback regarding his interpersonal skills was causing him and that he may contact HR to see where the issue of his interpersonal skills had arisen from. The fleet manager did not respond to this email.

The following week he met the fleet manager outside of the canteen as the fleet manager was leaving the depot. The fleet manager told him he was looking at the issue of his interpersonal skills.

The complainant was confused as to when his contract was going to end. He expected to get written confirmation. His name was on the roster for July and part of August 2021. The roster was a rolling roster.

When he presented for work on 2nd July 2021, he asked his duty manager if he was meant to be there because he knew his contract was coming to an end. His duty manager said that no one had told him that he wasn’t meant to be there. However, at 11am the fleet manager came and told him to leave as his contract had expired. It was very embarrassing to be asked to leave.  He received a letter later that day to confirm his employment had ended on 1st July 2021.

There were craft vacancies advertised before the expiry of his contract. 2 or 3 were filled before the complainant’s contract expired and 2 or 3 were filled after the complainant’s contract expired.

The complainant submitted that he has not been able to secure employment since. He commenced working on a trial basis without pay on 21st September 2022 in a flower shop. He applied for roles with four companies without success. He was diagnosed with a medical condition early 2022, however, he remained available for work.

The complainant clarified for me that he had two formal reviews with the fleet manager during his employment and the feedback on his performance was excellent. He does not recall if he was told that the contract was not being renewed because of his interpersonal skills. Rather, to the best of his recollection, he was told that HR were not renewing the contract and at the same meeting, his manager said HR had an issue with his interpersonal skills. He did not apply for any of the open positions because he was unaware if his contract was ending for definite. When he knew his contract had expired on 2nd July 2021, he did not apply for any of the open positions because of his pride and he was embarrassed how things ended.

Cross Examination

The complainant agreed that he signed a fixed term contract for a term of 24 months with an unfair dismissal exclusionary clause. He confirmed that he was never told to stop highlighting safety concerns because that was part of his job, and he was never reprimanded for doing so.

The complainant did not raise a grievance with HR or contact HR as he indicated he might do in his email of 21st May, because he understood, following their conversation outside the canteen, that the fleet manager was looking into what was meant by his interpersonal skills being an issue.

The complainant acknowledged that he received verbal notice that his contract would not be renewed and that no one said anything to the contrary since the meeting of 17th May. He added that he thought the issue of his interpersonal skills was intertwined with the non-renewal of his contract and that when the fleet manager said he was looking into the interpersonal skills issue, that also meant he was looking at the renewal of the contract. He formed this view because when he was informed on 17th May that HR are not renewing the contract, he was also told that HR had an issue with his interpersonal skills. He felt that it was reasonable to come to that conclusion when the two matters were discussed at the meeting of 17th May. Furthermore, he received no formal written notice his contract was ending, and he was on the roster into August. 

Closing Arguments

The complainant raised safety concerns in accordance with company procedure and this is what ultimately went to the issue around his attitude. His dismissal was in breach of fair procedure and at the time of a live grievance which had not been investigated. He was told that his contract renewal was being looked at. He was confused as to the date his employment was ending. His immediate manager thought he was continuing in employment, and he was rostered to do so. He received formal notice of termination after the fact in an effort to fix things. This was a hasty letter sent on 2nd July 2021 which in fact was after his contract had already been renewed. The contract did not end on 30th June on the expiry of the 24-month term but rather on 2nd July 2021. The manner of his dismissal was wholly unfair and caused the complainant great embarrassment.

Written Submission on Loss and Mitigation

A written submission and supporting documentation regarding loss and mitigation were submitted on 30th September as requested.

The Law

Dismissal and Date of Dismissal

Section 1 of the Unfair Dismissals Act 1977 (herein after “the Act”) defines dismissal, which includes at (c):

(c) where a contract of employment for a fixed term expires without its being renewed under the same contract …

These two components, term expiry and non-renewal exist in the instant complaint.

Date of dismissal is defined in section (1) of the Act as the date of the expiry of the fixed-term contract:

(c) where a contract of employment for a fixed term expires without its being renewed under the same contract ……., the date of the expiry ….

Exclusion Clause

Section 2(2)(b) provides that the Act does not apply in relation to a:

S2(2)(b) dismissal where the employment was under a contract of employment for a fixed term ….. and the dismissal consisted only of the expiry of the term without its being renewed under the said contract …. 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 ….

Exceptions to the Exclusion Clause

Section 2(2)(b) is strictly construed and will only apply to a dismissal consisting of the non-renewal of a contract. It does not apply:

1.       To a dismissal occurring before or after the expiry of the contract.

2.       If the termination of employment was related to factors other than the expiry of the term of that contract. In Limerick City & County Council V Richard Moran UD/17/46, the Labour Court in finding that the complainant was unfairly dismissed, concluded that issues raised in the complainant’s performance review were the determining factor in the non-renewal of the employment contract. On the basis that the expiry of the fixed term contract was not the only reason for the complainant’s dismissal, the exclusion set out in section 2(2)(b) of the Unfair Dismissals Acts did not apply.

3.       Where two or more contracts are issued. If an employee can show that a second or subsequent contract was entered into for the purpose of avoiding liability under the Act, the Act will apply. The employer would then be required to show that there were substantial grounds justifying the dismissal. For example, Fitzgerald v St Patrick’s College, Maynooth UD244/1978 concerned a complaint of alleged unfair dismissal when a second contract was not renewed. The tribunal noted:

If the mere expiry of a fixed-term contract of employment were to be regarded as a substantial ground for the non-renewal of the employment, the Unfair Dismissals Act could be rendered abortive in many cases. An employer could side-step its provisions by employing employees on fixed-term contracts only. Then to get rid of an employee on whatever grounds, be they trivial or substantial, fanciful or solid, fair or unfair, he need only wait until that employee’s fixed-term contract expired and then refuse to renew it.

The latter exclusion does not apply to the issuing of one fixed term contract, regardless of whether further work is available. It appears from the law that the employer is free to issue one fixed term contract and, assuming the conditions in s2(2)(b) are satisfied and the dismissal consists only of the expiry of the term of the contract, the unfair dismissals Act does not apply.

It is noted in Redmond on Dismissal Law (2017) that the provision at section 2(2)(b) “unsurprisingly resulted in a change in policy of some employers who decided never to reengage an employee on the expiry of the fixed term. The EAT described the claimant in O’Mahony v Trinity College Dublin <[1998] 9 ELR 159> as “the ironic victim of a change in the law, which was designed to improve the position of employees on fixed term contracts” (at 23.79).

The Interpretation Act 2005

In schedule 1, Interpretation of Particular Words and Expressions, a month means a calendar month.

My Findings

The question for me is whether the respondent is entitled to rely on the exclusion clause at s2(2)(b) of the Act. On the face of it, it would appear so. The contract was for a fixed term of 24 months, it was in writing, was signed by or on behalf of the employer and by the employee and provided that the Act does not apply to a dismissal consisting only of the expiry. However, as noted above there may be circumstances where the exclusion clause will not apply. The respondent may not be able to rely on the exclusion clause if the dismissal occurred before or after contract expired, if a second contract was issued or if the termination was due to factors other than the expiry of the term.

It is common case that rosters were completed for a four-week rolling period and the complainant’s name was on the July roster, that work was available, and that the complainant did not receive written confirmation of termination of his employment until 2nd July. The complainant was told his contract would expire and he acknowledged that nothing to the contrary had been said. On reporting for work on 2nd July, he specifically asked “was he meant to be there”.

Understandably the above facts gave rise to confusion and hope on the part of the complainant regarding the renewal of his fixed term contract. I accept the complainant believed his manager                                was looking into the issue of his interpersonal skills. I understand how the complainant may have thought that this also meant that the renewal of his contract was under review. However, I find that it was never the intention of the respondent to renew the contract because there was no approval to increase headcount in 2021. At no point did the manager say he was looking into the contract renewal. The complainant assumed he was but did not verify this. The complainant was not rostered to work on 1st July and on reporting for work on 2nd July, there was minimal delay in confirming that his contract had expired. Written confirmation of this then issued.

As per the Interpretation Act 2005, a month means a calendar month. The end of a 24-month term commencing 1st July 2019 is 30th June 2021. I find the contract expired on 30th June 2021 and the error in stating an expiry of 1st July 2021 and/or the employee attending for work on 2nd July 2021, do not give effect to an extension of the contract.

Was the termination related to factors other than the expiry of the term? If so, the Act will apply to the dismissal.

I find that the complainant’s dismissal was not due to factors other than the expiry of the contract. This complaint differs from Limerick City & County Council V Richard Moran, UD/17/46 in two respects. There is no evidence that the complainant’s performance or interpersonal skills were an issue during his employment, or the reason given for the non-renewal of the contract. His performance reviews were excellent. There was no evidence proffered by the complainant that others had their contracts renewed at the time the complainant was dismissed. There were several positions open that the complainant was free to apply for and chose not to, even when he was certain his contract was not being renewed. At no time did the complainant tell the fleet manager or a member of HR that he wished to have his contract renewed. This is unfortunate as it may have led to the complainant applying for one or more of the open positions.

In conclusion, the employer is entitled to rely on the exclusion clause at 2(2)(b) and therefore, the Act does not apply to the dismissal of the complainant.

CA-00047861-001

For the reasons set out above, I decide that the complainant was not unfairly dismissed. The complaint of unfair dismissal made pursuant to the Unfair Dismissals Act is not well-founded.

Non-renewal of a fixed term contract. Unfair dismissal.