ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: ADJ-00034939
Parties:
| Worker | Employer |
Anonymised Parties | Senior Manager | A Representative body |
Representatives | Jean O'Dowd, Unite the Union | Anna Rosa Raso, ESA Consultants |
Dispute(s):
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00046066 | 10/09/2021 |
Workplace Relations Commission Adjudication Officer: John Harraghy
Date of Hearing: 25/08/2022
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute(s) to me by the Director General, I inquired into the dispute(s) and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute(s).
Background:
The worker was employed on a fixed term contract from 25/03/2019 and due to end on 28/05/2021. The appointment was described as a two-year fixed term contract “initially”. The worker expected this contract to be renewed. Prior to the ending of the contract the worker believed that a series of incidents occurred which, taken in their totality, amounted to a process which resulted in the non-renewal of his contract. The employer’s position is that the worker was employed pursuant to a fixed term contract which at all times contained an expiry date. The worker is seeking compensation for loss of pay, statutory redundancy and payment of an office allowance. |
Summary of Workers Case:
The worker’s role was created following a strategic review of the employers’ operations. He was given a two-year fixed term contract and it was the workers understanding that this was to be renewed. The contract was due to expire on 28/03/2021. The worker believes that he was adversely treated by the employer and the result of this was that his contract was not renewed. The worker in his submission and at the hearing provided examples of what he referred to as “the overall tapestry of adverse treatment”. The worker lodged a formal complaint in relation to these but did not pursue this. The worker was aware that his contract was due to expire on 28/05/2021 but at no stage was he advised that his employment with the employer was to end. He was always clear that a permanent appointment was envisaged. The worker was forced to take accrued annual leave, and this finished on 28/05/2021. He was advised on the previous day that his employment was to cease. Various attempts by the worker and his representative to meet and engage in a resolution of the issues arising from this were not met with any meaningful engagement from the employer. The worker disputes the employer’s explanation in relation to how the contract ended. A flawed process was used. This change of direction falls far short of the extensive review that resulted in his post being established in the first instance. The worker has suffered adverse treatment because of the decision to end his employment. He was not furnished with a final pay slip, did not receive a redundancy payment and was not paid for home/office expenses which he understood were approved. The worker is seeking some form of redress because of the unfair treatment by the employer. |
Summary of Employer’s Case:
The employer confirms that the worker was employed on a fixed-term contract when he commenced employment. The worker was on notice from the commencement of this contract that there was an end date and this was specifically expressed in the contract of employment as follows: “Your employment is offered on a fixed term basis and will commence on 25th day of March and shall terminate on 28th day of May 2021”. There was always transparency in relation to the expiry date of the workers contract of employment. The employer also notes that the role has not been replaced. The employer has concluded that the role was better serviced through alternative means such as outsourcing certain functions, subdividing parts of role to others and part-time work for some of the role. The employer denies that it treated the worker unfairly and the worker was reminded from 30/03/2021 that his contract was due to end and in that context the employer wanted the worker to utilise any outstanding annual leave before then. |
Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. The worker in this case performed his duties in a satisfactory manner and there was no performance issued required to be addressed. This was a new role which was deemed to be of strategic importance arising from a major review of the employers’ operations.
For reasons best known to the parties the working relationship seems to have deteriorated to the extent that the ending of the workers contract was covered in a shroud of uncertainty. The employer argued that the worker did not utilise any process to clarify the situation. The worker argues that he was clear that any action on his behalf to clarify the situation would be used against him to bring his contract to an end. The worker also believes that he was proved correct in this approach as there followed a series of incidents which resulted in his contract not being renewed.
The employer in this case relies on the provisions of the contract of employment. This was an extensive contract and covered almost every eventuality. However, there was no clarity in relation to a renewal process in circumstances where the initial appointment was advanced on a two-year fixed term basis “initially”. As this was a senior appointment in the body concerned, such clarity would have most likely avoided this dispute.
Having heard both sides in this dispute I am satisfied that the worker had a reasonable expectation that his contract would be renewed. This post materialised from a strategic and structural review of the employer involved in this dispute. There was a delay by the employer in making a final decision due to the various layers of decision making. However, it would seem reasonable that there should have been proactive engagement with the worker in relation to this and given him adequate notice.
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Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute. I am recommending that the employer pay the worker the sum of €16,200 in full and final settlement of this dispute. This payment to be made no later than six weeks from the date of this recommendation. I am also recommending that the worker accept this sum in full and final settlement of this dispute and confirm this in writing to the employer.
Dated: 08th September 2022
Workplace Relations Commission Adjudication Officer: John Harraghy
Key Words:
Fixed-term contact. |