ADJ-00035476

Complainant

Respondent

Parties

Aidan  Cody

Dupont Nutrition Ireland

Representatives

Sarah Daly BL instructed by  Katherina White Solicitors

Laura Madden BL instructed by  Ronan Daly Jermyn Solicitors

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-00046623-001

11/10/2021

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

CA-00046623-002

11/10/2021

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

CA-00046623-003

11/10/2021

On 11 October 2021, the Complainants Solicitor filed three complaints before the WRC on behalf of the complainant a Production Operator at the Respondent business.

1 that the complainant had been unfairly dismissed on 17 May 2021

2 that the complainant had not been advised in writing on the objective justification for being offered a fixed term contract rather than a contract of indefinite duration.

3 the complainant was unaware of any information provided by the respondent to employee representatives about fixed term work arrangements.

The Respondent operates a manufacturing business and has rejected the claims. Extensive written submission was filed 8 March 2022 and 23 June 2022. The Complainant followed with extensive written submissions.

Both witnesses at hearing gave evidence under oath.

Both parties presented a very cogent, well prepared and executed case at hearing and I reflected that to the parties in my closing remarks.

I apologise to both parties for my delay in completing this decision.

On 20 February 2023 and in response to my request a hearing, the Respondent submitted copies of advertisements which accompanied both the internal and external process of recruitment in March 2021. The Respondent helpfully copied this to the complainant.

The complainant had been requested to submit pay slips , but none were forthcoming . I had previously received a tax balancing statement, created by Revenue .

The Respondent employed the complainant as a Production Operator between the dates 29 April 2019 and 17 May 2021. He earned a monthly salary, inclusive of overtime of €8167.

The Respondent employs 100 workers, with a maximum of 10-15 on fixed term contracts and 3-4 seasonal workers.

The Respondent has denied that an unfair dismissal occurred. The Respondent submitted that there were substantial grounds justifying the dismissal and that the company had acted fairly and reasonably at all stages.

The employment background centred on a specific purpose contract provided to the complainant in covering an initial secondment followed by paternity leave. The complainant backfilled the same role and he was aware of that purpose for employment.

It has been company practice to typically hire 2/3 people on  affixed term basis  to cover the summer period. 

 The Contracts and Renewals

1 29 April 2019 to 30 August 2019 (summer cover)

2     notification of extension in writing                          31 January 2020 (backfill)

3       notification of extension   in writing                          31 August 2020(backfill)

Verbal Exchanges

                                     7 October 2020 (backfill)

                                    February 2021 (backfill)

                       Up until                 May 17, 2021(paternity leave)

The Respondent commenced discussions with the complainant from September 1, 2020, onwards on his finish date, expected to be 7 October 2020. However, a project linked to the secondment was extended and the finish date was identified as February 2021 to cover a back to work adjustment and training for the secondee. A period of paternity leave was subsequently granted to the secondee, and the final extension of the contract was extended verbally to 17 May 2021

During this period, the complainant applied for a permanent position on two occasions and was unsuccessful.

It is not disputed that the complainant worked continuously April 2019 to May 2021.

Recruitment 2021

In March 2021, the Respondent commenced an open recruitment for four permanent positions as process operators. Three internal candidates, including the complainant applied. The jobs were offered to two internal and two external candidates. The complainant was unsuccessful and was advised that his work would cease on 17 May 2021.

Grievance

On May 4, 2021, the complainant raised a grievance against his termination of employment and his not being offer a permanent contract.  He was represented by his Trade Union during this three-stage process which endured with his agreement past his finishing date.

The Company met with the complainant on 11 May 2021 and 20 May 2021, without a resolution being reached.

Counsel for the Respondent submitted that the substantial grounds covering dismissal “the complainant was no longer required to backfill the role “He was aware of this and given notice of the eventuality. His grievance was heard. He was not involved in either a disciplinary or redundancy process.

The dismissal was fair and there were substantial grounds justifying the dismissal.

CA-00046623-001 claim for unfair dismissal

The Respondent has denied that the complainant was unfairly dismissed.

Counsel accepted that the Respondent did not come within the exclusion clause permitted at section 2(2)(2) (b) of the Unfair Dismissal Act, 1977.

In reference to a UK EAT case, Counsel pointed to a previous commentary in Terry v East Sussex County Council [1976] IRLR 332, which considered whether the expiry of a fixed term contract could constitute a substantial reason for dismissal.

…. The Industrial Tribunal should draw a balance between the need for protection for employers who have a genuine need for a fixed term employment, which can be seen from the outset not to be ongoing, and the need for protection for employees against being deprived of their rights through ordinary employments being dressed up in the form of temporary fixed term contracts ….

It could not be said that expiry and non-renewal of a fixed term contract could never in any circumstances constitute “some other substantial reason “and that such a dismissal had to be justified by some other reason …………his dismissal is thrown in the pot and judged according to the ordinary tests of para 6.

Counsel called on UK EAT case of Cohen v London Borough of Barking [1976] IRLR 416, where the EAT focussed that the probable length of employment, as known at the date of engagement is a material consideration amongst others.” not in the least assured of continuation “

Counsel submitted that Directive 99/70/ EC transposed into domestic legislation in the Fixed Term Act, 2003 allows for flexible working arrangements, “with the aim of making undertakings productive and competitive and achieving the required balance between flexibility and security for workers “

Calling on NUI Maynooth and OKeeffe FTD, 1411 at the Irish Labour Court (locum for lecturer on sabbatical), which applied Kucuk v Land Nordrheim-Westfalen [2012] IRLR 697 on the temporary need for replacement staff might constitute an objective reason. 

Irish Museum of Modern art v Emoe FTD 161, which endorsed the keeping of a position open for return post career break as objective grounds under the act.

In returning to the claim for unfair dismissal, Counsel led out on the fairness of a dismissal being judged “by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved Bunyan v United Dominians Trust [1982] ILRM 404.

Counsel contended that the complainant did not carry an entitlement to a permanent contract or automatic renewal of contract Prasad and HSE FTD 062,

Counsel outlined that the complainant was no longer required to do the work as the secondee had returned and that cessation of employment constituted substantial grounds justifying dismissal. The dismissal was linked to the occurrence of a stated event. This was also reasonable grounds.

The Respondent managed a three-stage grievance procedure which amounted to procedural fairness.

The topic of the 2021 recruitment process rests outside both of the legislative claims before the WRC. The positions were not open at the moment that the complainant left employment.

The Complainant has not mitigated his losses, and this must be considered in any determination of appropriate compensation.

Duggan v A and T drains services UDD 1737

Sheehan v Continental Administration Co ltd UD 858/1999.

The Respondent acknowledged that the complainant found new work in November 2021.

CA-00046623-002 claim under the Protection of Employees (fixed term work) Act 2003

The Respondent submitted that the claim was out of time .

CA-00046623-003 claim under the Protection of Employees (fixed term work) Act 2003

The Respondent disputed this claim and responded that that the Complainant was facilitated in representation by a Union representative.

Evidence of Mr Reilly, Operations Manager, (oath)

Mr Reilly outlined his role in Warehouse Logistics in workforce planning. There were 50 employees in production, who reported to a supervisor. The Complainant was an Operator secured through a recruitment agency, for summer cover in April 2019. He made the decision to extend the contract in light of a planned secondment. This was extended to February 2021 and extended until May 17, 2021, to facilitate a full return of the secondee.

Mr Reilly told the hearing that communication was open on this topic and the secondee returned as planned on 17 May 2021.

He submitted that a maximum fixed term contract component on the production 4-6-8 in total. The Respondent did not use Agency and the fixed term contracts were 5 to 10% of the Operator cadre.

By 4th May ,2021, the time the grievance was raised by the complainant, there were no fixed term contracts available at the company. There were no vacancies.

Mr Reilly outlined the chronology in two competitions held.

Late 2019 Permanent Operators, candidates interviewed, the complainant was unsuccessful.

March / April 2021 Permanent Operator, 4 roles, 4 candidates appointed, 2 external, 2 internal. there were three internal candidates, complainant was unsuccessful.

Mr Reilly instructed the Supervisor to prepare the complainant for the pre-arranged end date of May 17, 2021. Mr Reilly did not meet the complainant personally at that time, but did have a discussion around the recruitment competition, where he confirmed that May 17 “still stands “

In reflecting on the grievance raised, Mr Reilly said that the grievance procedure was agreed with the Union and was fully processed.

The Complainant was not offered a further temporary position as he was backfilling for a secondment.

He recalled that the external candidate commenced in late April 2021. This was an additional hire needed at the business. The complainant did not apply for fixed term position as the next available may have occurred later in the Summer.

During cross examination,

Mr Reilly confirmed 50 staff were present in Production, of which 32-36 were operators supervised by 5/6 Supervisors and joined by Engineers. There was a variable 5-10% temporary cadre within.

Mr Reilly acknowledged that he did not have specific training in fixed term employments. He acknowledged in hindsight the reliance on conversations around renewals of contracts should have been converted to writing. He confirmed that the methodology surrounding renewals of fixed term contracts had since been successfully reviewed and was now a “watertight process” with human resource input.

He disputed any errors by the Supervisor, not present at hearing.

In addressing the recruitment process of March 2021, he agreed that he had discussed the outcome with the complainant and told him he had been unsuccessful, but this was not a reflection on his performance. The Supervisor followed up.

Mr Reilly confirmed that the complainants exit date was known to him and put to the complainant. He responded to Counsel that the “date was not in question from February 2021 “

Mr Reilly disputed that a lack of process was applied to the complainants exit. He confirmed that notice of termination had accompanied a “verbal discussion “with the complainant.

He confirmed that the reason for exit was clear and given as that the complainant would be working until May 17. This was repeated after the recruitment process in April.

Mr Reilly disputed that he was conflicted in handling the May 4 grievance as he held a direct responsibility for this. He confirmed that he had not discussed the matter with the complainant or sought an extension to contract before issuing the May 5 outcome. He qualified this by emphasising that he had discussed a number of responses with HR and stood over the response as appropriate.

Mr Reilly in responding to Counsels question on the availability of other temporary positions, Mr Reilly stated that he understood that there were no temporary positions available, but roles like that were advertised externally. He stressed that the complainant was needed in the role he was filling until his exit date. He believed that another temporary advertisement followed in July/ August 2021

In redirect, Mr Reilly confirmed that the complainant had not applied for any position after May 17, and he did not submit a CV. He confirmed that he had a strong working knowledge of fixed term, employment and had issued lots of fixed term contracts with input from HR.

In clarifications, Mr Reilly distinguished the recruitment competitions in 2019 and 2021.

In 2019 the recruitment process was conducted by an Agency; the complainant did not appeal the decision not to make him permanent at competition.

In 2021, the recruitment process was “market driven” and managed inhouse. There were no specific interviews.

Mr Reilly confirmed the title of the role filled by the complainant during his tenure was consistent as written on the contract.

He confirmed that headcount at the firm operated on pre-approval for each hire and the vacancies were subsumed into the headcount. This response came to the question of whether the two temporary positions which needed backfill?

Mr Reilly confirmed that no employee had been made permanent under the 4-year rule.

Counsel requested an opportunity for Mr Reilly to clarify the arrangement for over time at the business. This consisted of an average of 10 to 14 shifts per week on a voluntary basis with an additional allowance paid. The exception was the Christmas shut down .

In closing, Counsel for the Respondent recapped the chronology surrounding the complainant’s tenure and contract renewals. She confirmed that work had ended, and the complainant had been appropriately appraised of this. The complainant was fully aware from his supervisor that work was ending on May 17, 2021.

The secondment process required a back fill and the complainant substituted until the fixed term came to a natural end.

There was no disciplinary or redundancy scenario.

Counsel concluded that the dismissal, outside of the exclusion clause of Section 2(2) (b) of the Act was fair and informed by the substantial reason of cessation of fixed term contract. There were no alternative roles available at the 17 May.

The Respondent engaged in an adequate process such as to communicate the reasons for the cessation.

Counsel contended that there was no guarantee of overtime in monthly earnings. she argued that the complainant had failed to mitigate his loss through lack of availability due to training. He had not pursued available work at the respondent. In the case of any decision regarding financial loss, loss could only be viewed through the matrix of 3 months July -November 2021. The permanent jobs had been filled by April 2021 and prior to the complainants exit.

The Complainant was employed as a Production Operator from 29 April 2019 to 17 May 2021 on a number of successive fixed term contracts. He earned €8167.00 (inclusive of overtime) for a 60-hour week. The Complainant found new work in October 2023 and sought the remedy of compensation in respect of the claim for unfair dismissal.

Counsel submitted that there was broad agreement between the parties in respect of the factual background to the complaint.

At the beginning, the complainant was hired on a “fixed term contract “29 April to 30 August 2019.A letter of renewal followed on 23 October 2019 to 31 January 2020. A letter of renewal of “fixed term contract “dated 29 January 2020 extended the tenure once more to 31 August 2020. The remaining three renewals were conducted verbally by the respondent.

Counsel raised the complainant’s contention that from 31 August 2020, the renewals were not applied to “fixed term contracts “. He accepted that he was requested to stay on, but there were gaps in relation to contractual documentation and renewals.

Counsel focussed on the period immediately preceding the termination of employment in. May 2021. This was the period where the complainant applied for and was unsuccessful in his pursuance of permanency. However, Counsel emphasised that this period of time was procedurally bereft as no disciplinary procedure occurred, no consultation prior to redundancy occurred. the Complainant was not provided with reason for his dismissal of an opportunity to appeal this development.

The Grievance:

This was submitted on 4 May 2021 and a response issued 28 hrs later by Mr A

“… to clarify, your temporary employment is ceasing because your role was temporary backfill for another employee who has been on secondment and who is now returning to his original role and so the backfill is no longer required.

An appeal followed at a meeting on May 11, 2021. During this exchange, the complaint acknowledged that he had not been met by an end date for his employment. The Union had taken issue with the lack of “end date “referenced in the verbal contracts.

On 14 May 2021, Ms C, not present at hearing, issued her findings that the complainant was aware of his cessation date of employment. She did not record evidence on who carried this information to the complainant.

The role terminated on 17 May 2021, without a letter setting out the grounds for termination or an opportunity to appeal.

The complainant pursued vacant roles post dismissal 7 names companies and secured new work on 15 November 2021 on €14.55 hourly rate €415.00 nett per week. This amounted to a large variation in earnings between both jobs. He also travels further.

Section 2(2) (2)(b) of the Act provides for an employee hired under a fixed term or specific purpose contract of employment. Counsel for the complainant accepted the respondent stated position that the respondent could not avail of the exclusion clause. Counsel observed that the respondent had, in fact attempted to structure the earlier contracts so as top avail of that exclusion clause when they referred to “the non-application of the unfair dismissals Act, 1977.

Counsel contended that the instant employment was never a fixed term arrangement as described in the Unfair Dismissals Act, 1977 and the employment “must then be viewed as a standard permanent employment “to be judged under the “other substantial grounds justifying dismissal “heading.

Brennan v Bluegas ltd UD 591/1993, where the EAT had found a fair dismissal when a quest for insurance cover for an employee in the aftermath of a number of accidents over 6 months, was met with an inflated insurance premium and inability to secure alternative cover.

Kavanagh v Cooney Jennings UD 975/ 1983where an employer was found to have substantial grounds to dismiss when an employee pleaded guilty to indecent assault.

Flynn v Power [1985] IR 648, Costello J found activities that were in contravention of the religious ethos of the school in the case of a schoolteacher having a relationship with a local married man “as a rejection of the norms of behaviour and the ideals the school was endeavouring to instil in and set for them” substantial grounds were said to have accompanied the dismissal.

Counsel took issue with the Respondent jurisprudence which predated the Directive of 99/70/EC and thus the Fixed Term Work Act. Counsel quoted section 2(2)(2)(b) as the only permissive basis on which a fixed term or specified purpose contract may be terminated. She submitted that the respondent umbrella argument on permission to terminate presumed under “other substantial grounds “was at odds with the framework of legislative protections afforded to fixed term workers.

The grievance was lodged after the decision to terminate the employment was made in a procedural vacuum.

In calling on Hennessy v Read and Write Shop at EAT UD 192 /1978, on the test of reasonableness, Counsel submitted the importance of the nature and extent of inquiry carried out by the respondent prior to dismissal and the conclusions drawn from such an inquiry.

Counsel submitted that the complainant was not advised that a decision might be made on his termination of employment. No policies governing that action were shared with him. No investigation / report. He was not informed who was deciding on his dismissal. He was not heard or officially notified of the decision to dismiss. Measures short of dismissal were not considered.

Counsel concluded that the complainant was not provided with an appeal of the dismissal.

In registering a dissatisfaction with the grievance in this case, Counsel submitted that Mr A was first to manage the grievance at step one, yet he was not impartial as he was linked to the original discussions around the verbal extension of contract. Ms C, at second stage did not follow up the lack of perceived end date to employment as submitted by the complainant. She referred to it as a “sham process”.

CA-00046623-001 claim for unfair dismissal

Counsel submitted that the time span of employment was covered in part by contractual documents and verbal renewals. The complainant had been asked to extend his time at the business, but when permanent jobs came up and he competed, he was unsuccessful. The employment was at variance with the provisions of the Protection of Employees (fixed term work Act) 2003. The Complainant contends that he was unfairly dismissed.

CA-00046623-002 claim under the Protection of Employees (fixed term work) Act 2003

The Complainant submits that he was never advised in writing as to the objective justification for offering him a fixed term contract and not offering him a contract of indefinite duration.

Counsel submitted that when an employee is hired under a fixed term contract, the employer is obliged to provide certain statements to the employee in accordance with Section 8 of the Act.

As the complainant was provided with an end date on his commencement with the respondent, he meets the definition of “fixed term employee “for the purposes of the Act. Counsel submitted that in the context of the 4 verbal extensions, the complainant was not provided with a written statement setting out the objective justification for the renewal and the failure to offer a contract of indefinite duration.

HSE v Khan [2006] 17 ELR 313 ,…in terms of an anticipated defence under section 9(4) …….”thus where an employer fails to provide a fixed term employee with a statement in writing , in accordance with Section 8(2) , it is apt  to infer , in accordance with Section 8(4) of the Act , that the grounds subsequently relied upon were not the operative grounds for the impugned decision and it would be for the employer to prove the contrary “

Clare County Council v Power FTD 0812 on assessing the magnitude of a breach of the Act.

HSE v Ghulum FTD 089 on a technical breach, where compensation was informed by “effective, proportionate, and dissuasive remedy “Von Colson “

CA-00046623-003 claim under the Protection of Employees (fixed term work) Act 2003

The Complainant submits that during the course of his employment, he was unaware of any information that was provided by the company to his employee representative about fixed term work arrangements.

Evidence of Mr Cody, Complainant (by oath)

Mr Cody confirmed that he had 15 years Pharma experience as a Process Operator across a number of companies. He recalled commencing work with the Respondent in April 2019. He started with 2 others and was on days for 8 months.

He recalled that written contracts had ceased, and he had no recollection of his backfilling a position for secondment at that time. He had not been provided with a written confirmation of this.

His supervisor had informed him around September 2020 that his contract would be coming to an end but undertook that he would seek to keep him on as someone was on secondment.

The Complainant submitted that he had drawn attention to the expired contracts, and he understood that it was work in progress in terms of renewal. The Supervisor told him to “keep coming in “

The Complainant said that he applied for the permanent job as soon as he knew about it as it had not been advertised internally. He spent some time trying to obtain clarity on the job and sent in his CV. He recalled that Mr Reilly had told him that he had been unsuccessful around the end of April. He said that he felt he was last to know.

He met with Mr Reilly at 11.30 pm and was informed that he had not been successful for the role. He said that the decision was not linked to hi work or any reflection on him personally. He was disappointed and went home. He did not recall a discussion on May 17.

During the following shift, the Supervisor sought clarity on the complainant’s tenure. The complainant was informed that he could stay “until May 17, if he so wished “

The grievance followed.

The Complainant gave evidence on loss and mitigation and his current pay.

The Complainant confirmed that if he had a prior awareness of his end date being May 17, 2021, he would have been looking for work.

During cross examination, the complainant re-affirmed that he had not recollection that he was backfilling for a secondment. He said he joined with two other temporary workers.

He was aware about a Project linked to secondment by August 2019.

The link to secondment came later. The complainant said that he conversed with the secondee himself around October 2020 and enquired when he was coming back, but he was not specific in his return date.

The Complainant confirmed that he had chased contract renewal but was told “tell Aidan to keep coming in “and he wondered, for how long must I do this? He had seen Mr Reilly on the floor 2/3 times.

The complainant confirmed that he was requested to stay on to cover the secondee training. When n counsel asked why he had not asked about dates, he said that he needed a contract and wasn’t getting one.

The Complainant had no awareness of an advertisement for a fixed term position before he left or in July / August 2021. He centred the grievance on that he was not afforded an interview and his end of contract.

He told Counsel he had applied for new work “every day of the week”.

In redirect, the complainant was asked about mitigation of loss and express some uncertainty. He said that he had contacted recruitment agencies straight away.

In clarification, the complainant conformed overtime at 12 hours per week. He said he was available for work May to November 2021. He had two-night certified sick leave.

He confirmed that the process of renewal of contracts was managed by the Union. The Complainant confirmed that he saw his dismissal as unfair as he had been denied an opportunity to sell himself at interview on foot of two years exemplary performance at the business. He viewed his treatment as contrary to the company policy of respect dignity and fairness. He said he saw permanency as a “next step “

He had not received training as an Operative.

I wanted to know more about the other operatives who commenced around the time the complainant did in 2019.

He told the hearing that Mr A had secured permanency in 2019. Mr B and Mr C secured permanency by end 2021, both were laid off for 5 weeks during covid pandemic in 2020 and rehired.

He had not applied for 2021 holidays by May 17, 2021

In conclusion, Counsel for the complainant focussed on the variance in both the complainants and Mr Reillys recollection of conversations.

She contended that the respondent was under obligation by statute, Section 8 on renewal of contracts. Once the written contracts / letters ceased in September 2020, the complainant had been left in limbo and without the benefit of written renewals.

Counsel submitted that the circumstances of the dismissal were as if section 2(2)(b) was in place. The Complainant had been denied substantial grounds for the dismissal and he was not permitted a process pre exit or an entitlement to be heard.

The complainant was not aware of the jobs in April 2021, which were suitable to his skills.

The Complainant sustained a financial loss.

I have been requested to make three decisions in this case. In arriving at that these decisions, I have considered both parties extended written and oral submissions, the evidence adduced, and the post hearing document submitted.

This is a case which has at its backdrop context and background the Protection of Employees (Fixed Term Work) Act 2003.

This was groundbreaking legislation in this Country and while a lot of the emerging jurisprudence has captured from the public sector, the private sector is also explicitly covered by the Legislation.

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003

The heads of the Act :

 Act to provide for the implementation of Directive no. 1999/70/ec of 28 June 1999, of the council of the European communities concerning the framework agreement on fixed-term work concluded by ETUC, UNICE AND CEEP, to amend the employment agency act 1971, the organisation of working time act 1997 and the protection of employees (part-time work) act 2001 and to provide for related matters. [14th July 2003]

I have taken the unusual step in seeking to showcase the presence of this legislation to focus the parties on the longevity of this Act and the overarching  presence of the Directive 1999/70/EC, from where its power and scope is drawn.

I think academic commentary may be  additionally beneficial at this stage.

Des Ryan BL in Maeve Regans Employment Law at Chapter 13 at 13.01

The adoption of the Protection of Employees (Fixed Term Work) Act 2003 in order to implement Directive 99/70/EC introduced an entirely new legal regime in Ireland in relation to fixed term workers. Although only introduced less than 15(now 20) years ago, the 2003 Act has provoked a considerable amount of litigation before the WRC and the Labour court.

….. an important initial point to make about the Framework Agreement is that it proceeds on the premise that employment contracts of indefinite duration are the general form of employment relationship, while recognising that fixed term employment contracts are a feature of employment in certain sectors or in respect of certain occupations and activities.

The purposes are.

1 To improve the quality of fixed term work by ensuring the applicati9on of the principle on non-discrimination.

2 To establish a framework to prevent abuse arising from the use of successive fixed term employment contracts or relationships.

… Ireland chose to implement clause 5 by prohibiting the placing of employees on fixed term contracts either for more than four years or subject to a maximum number of renewals, unless the use of such a contract is capable of being objectively justified.

This is a very clear description of the legislative objectives

Des Ryan goes on to set out the rights owed to fixed term workers under the 2003 Act , which covers

1 the right to be treated no less favourably than a comparable permanent employee

2 the right to receive written statements at engagement and renewal

3 the right to a contract of indefinite duration

4 the right to be informed of vacancies

5 the right to have the employer facilitate , as far as practicable access to appropriate training opportunities

6 the right to be taken into account for the purposes of calculating the threshold above which employee representatives may be constituted in an undertaking in accordance with Section 4 of the Transnational Information and consultation of Employees Act, 2006

6 the right not to be penalised for inter alia invoking the protections of the 2003 Act .

This is the backdrop to the circumstances of the individual case .

Section 2 of the Act defines a fixed-term employee as:

” means a person having a contract of employment entered into directly with an employer where the end of the contract of 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 but does not include—

(a) employees in initial vocational training relationships or apprenticeship schemes, or

(b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme;

“Framework Agreement” means the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP annexed to Directive No. 1999/70/EC of 28 June 1999 of the Council of the European Communities;

 Renewals include extensions .

In the instant case, I am met with a very fragmented specimen of employment as related to the stated objectives of both the Directive and latterly the Act. I appreciate that the employment has had international input, but there is a very clear emboldened section 13 within the first contract signed by the complainant on 29 April 2019

13. Irish Law applies to this contract

Put simply , the language of the Act or the heading of the Act is not mentioned in the foundation document of employment issued on 24 April 2019.

There is reference to a fixed term contract but no reference to the presiding legislation to which it was linked. This Is not cured in either of the notification of renewals dated 23 October 2019, 29 January 2020, where the employer is described as a variable entity.

1 Employer FMC International , part of the Du Pont Group

2 Employer  Dupont Nutrition Ireland

3 Employer  Dupont Nutrition Ireland

For the purposes of this case , both parties have agreed that the correct legal entity stands as Dupont Nutrition Ireland  trading as FMC International and so I proceed .

I will return to the identifiable legal entity later as I consider the March 2021 recruitment process .

CA-00046623-001 claim for unfair dismissal

This claim has been advanced as a claim for statutory unfair dismissal as opposed to a claim advanced under Section 13 of the Protection of Employees (fixed term work) Act 2003.

The claim has been strongly rejected by the Respondent in this case.

Section 1 of the Unfair dismissals Act 1977 provides a definition of dismissal as:

 (c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract 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), the cesser of the purpose.

I have had some difficulty in the fragmented nature of the complainant’s employment in terms of accompanying documentation. Both parties accept that the last written notification of renewal was dated 31 August 2020 and was followed by  verbal assurances of continuance.

Having listened to both the evidence of Mr Reilly and Mr Cody and following a careful consideration of the three contracts submitted, I find that the complainant worked under a fixed term contract from the outset, however it did not draw from the objectives of the Protection of Employees (fixed term work) Act 2003 in that regard. There was no mention of a cover for the secondee at the outset, no mention of summer cover. Therefore, it was difficult for me to hone into what exactly was in contemplation of the respondent during the material time of contract issue.?.

fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of 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.

It goes to the very core of the Respondent case that the Complainant was placed as a locum for a secondee to a project, followed by paternity. It is regrettable that the Respondent did not convey that in writing at the material time or at any time in the tenure. I accept that the complainant pressed on in his employment and sought renewals of contract, without success.

This comes into sharp focus against the primacy of Directive 99/70/ EC law as transposed into Irish law in Protection of Employees (fixed term work) Act 2003 at “objective justification “section 7, 8 and 9 aimed to respect Article 5 of the Directive on avoidance of abuse of fixed term contracts.

Department of Social Protection v McLoughlin from the Labour court in FTD 10/2016 found that the renewal of a fixed-term contract was “for the purposes of a staff member absence” was too vague and equivocal.

I understand and appreciate that the Respondent has reviewed its practices going forward in this regard.

 However, I am bound to press on with the unique circumstances of this case.

I find that the complainant was employed continuously on a fixed term contract from 24 April 2019 -17 May 2021 and can safely enjoy the protection of the Unfair Dismissals Act in that regard.

Exclusion clause

Neither party argued the application of the exclusion/ waiver clause of Section 2(2)(2) (b) of the Act.

Both parties came to hearing satisfied that the circumstances as provided in the clause were not relevant.

I now have to consider whether the claim is foiled by the exclusion clause contained in Section 2(2) (b) of the Act.?

 2) subject to subsection (2A), this Act shall not apply in relation to—

(a) dismissal where the employment was under a contract of employment for a fixed term made before the 16th day of September, 1976, and the dismissal consisted only of the expiry of the term without its being renewed under the same contract, or

(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.

(2(3) b) In this subsection “term of the contract” means the whole of the period from the time of the commencement of work under the contract to the time of the relevant dismissal.

I have already discussed a perceived frailty in the employment contract vis a vis the fixed term work Act. I have also identified a deficit in the criteria required to benefit from the exclusion clause.

The Respondent cannot be permitted to rely on the clause as the second contract was not signed by the complainant. The period from August 31, 2020, was not covered by a written renewal.

In Allman v Galway County and city Enterprise Board ltd at EAT 2006 17 ELR 196, held that none of the one-year contracts complied with Section 2((2) (b) of the Unfair Dismissals Act that provides protection to the employer provided that all the requirements of the section have been met.

I find that the exclusion/ waiver clause in Section 2(2) (b) has no application in the case.

Other Substantial reasons:

This is a case, where I am being asked to consider that there were other substantial reasons justifying the dismissal on May 17, 2021? The brings my review outside the typical defences of Section 6(4) of the Act

As Des Ryan observes in chapter 25 of Redmond on Dismissal

This category of defence is particularly relevant in cases of termination where the employers’ interests or requirements are concerned.

I would fully acknowledge that it is not an easy task to reconcile the limitations imposed on managing a private sector workforce headcount with the rights afforded to fixed term employees. This was flagged in an academic commentary in 2011 by Mary Kelleher

“It’s A Fix a Review of restrictions on the renewal of fixed term contracts in the public sector “IELJ 2011 2 49-55

The complainant has advanced the argument that process was not followed in this case and drew from Hennessy, on reasonableness . This is always a useful case on considering inquiry under the defence of conduct.

The complainant has also drawn on cases taken under the Protection of Employees (fixed term work) Act 2003 e.g., Power

I understand the Respondent reliance on Terry, which goes to consider the market forces.

This brings me to consider the jurisprudence in a case from 1978, long before the 1993 amendment or the EU Directive but focussed on a dismissal of a Lecturer, Mary Fitzgerald against St Patrick College Maynooth UD 244/1978 which recorded a salutary wording at EAT, in a similar set of facts.

“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 Dismissal Act could be rendered abortive in many cases.

An employer could sidestep its provision by employing his 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 employees fixed term contract expired and then refuse to renew it. The threat of non-renewal of his contract might well be enough to make many an employee submit to oppressive conditions or treatment at the hands of an employer “

There is nothing in this case to suggest that the complainant worked in an oppressive environment. On the contrary, this was a high earning job with many benefits. It was a job that appeared to be without incident for either party until the circumstances which led to the termination of May 2021.

It was clear from the Respondents evidence that the locum’s secondment became the respondent’s rationale for employing the complainant from October 2019. However, a what’s app attributed to the Supervisor linked to a notification of cessation in September 2020 suggests that the locum situation evolved in 2020. I am assured that the complainant had some awareness of his presence at the firm being linked to the secondees absence as he recounted in evidence that he had asked him himself when he was returning only to be told the date was unknown.

It has not been possible for me, in the lack of supporting documents or to take evidence from the secondee just what the precise dates of the secondment were.

I am satisfied that for a time at least the complainant was linked to covering for the secondee. I am also satisfied that he undertook the same work across shift April 2019 -May 2021.He did not receive redundancy, nor was he a participant in any disciplinary process .

I have considered the facts as raised and the oral advocacy very carefully in this case.

I find that there was a defined separateness between the culture surrounding honouring headcount / overtime / locum/ short term hires and the obligation to manage this employment through the provisions of the Fixed Term Act.

It was, if you like a clash between commerce and business imperatives and the rights afforded to a fixed term worker.

I fully accept Counsel for the Respondent argument that the respondent had scope under the Directive to have an adjunct workforce of fixed term employees to the permanent cadre.

However, I would have much preferred to have seen a collective agreement on fixed term workers in this case. This is a closed shop employment, as referenced on the foundation contract and it may well have benefitted the parties, if both parties knew how things would work out when the complainants function changed in the companies’ eyes.

Mr Reilly clarified that no member of staff had been converted to permanency via the four-year rule. I found an extended period of time where the renewal of contracts, both verbal and written were bereft of respect for the legislative requirements on commencement and renewal.

I note that the complainant did pursue renewals but did not advance a grievance in pursuance. this was a mistake on his behalf .

While I appreciate that this case came to me as an unfair dismissal claim, the law around the contractual context emanates from the Fixed Term Act.

 I have identified a clear shortfall in the management of this fixed term employment, from the outset , which intensified from August 2020 onwards. I accept the complainant’s evidence that he observed two fellow starters from 2019  become permanent, albeit both had a period of lay off and rehire in 2020.

It is not lost on me that extensions to tenure were secured through informal interventions and that might explain why the emphasis on objective justification got lost .

I had a distinct unease in relation to the March 2021 competition for permanent positions. I could not be certain that the ad marked “Iff “made it to the noticeboard as nobody explained the relationship, if any between Du Pont and IFF. I noted the inconsistency between the November 2019 interviews and the desk top recruitment applied to internal candidates in 2021.

I found on the evidence that there was a certain remoteness attached to the 4 permanent hire opportunities in March 2021. I accept the Complainants evidence that he had to seek them out. I understand ~Mr Reillys point on testing the market, however, there was a higher obligation on the respondent on this occasion to familiarise the complainant with notification of vacancies than an ambiguous recruitment process.

I was not satisfied with the grievance management process as stage 1 was meant to be conducted by the supervisor and not the Operations Manager.

It was the Operations Manager who had hired the four permanent staff and I must find that this intervention at stage one was  procedural containment and contrary to natural justice.

I found a certain plaintiveness in the grievance that was echoed in the complainant’s evidence at hearing. He simply had no idea what set of circumstances justified his dismissal. He believed that he was treated unfairly in the competition for permanent posts.

 He sought an explanation and an accommodation of an extension of tenure, but despite strong advocacy on record, he was not heard.

He sought reasons for a temporary post being allocated without his involvement . I could not find any documented reason for this.

There is scope in the foundation contract to exercise a lay off clause “where through circumstances beyond its control it is unable to maintain you in employment or maintain you in full em0ployment “

I could not find a  consideration of any exercising  of this clause, which is surprising given the subsequent hiring process described in Mr Reillys evidence.

I have found that the Respondent had work available during Summer 2021 and the complainant was not considered. This was also reflected in the undisputed pattern of an abundance of  voluntary overtime at the plant .

I found the lack of recourse to trial a lay off to be an  inconsistent practice to the one adopted by the Respondent in 2020 to two of the complainants’ colleagues.

I accept the Respondent position that the Complainant had an awareness of May 17 as his finish date, but I found that his grievance in opposing this  and his exclusion from interview for permanency was unfairly managed at the plant.

Applying an objective analysis to all that I heard and read in this case, I have found that the complainant was dismissed through a lack of a solid awareness of the protections of the Fixed Term Act 2003.

He was not afforded a fair process in the grievance from May 4, 2021. The Respondent did not consider lay off as a mechanism to save the employment as practiced in 2020. I found that nobody took meaningful time to consider the implications of dismissal for him .

 This is at variance with the permitted other substantial reasons for dismissal such as financial security, Brennan Blue gas, Third Party Pressure, Flynn or Re-organisation, TUPE, Economic Technical or Organisational change .

I have given weighting to the Respondent argument on retaining a freedom to run their headcount , however I was not satisfied that headcount was run with due regard for the protections set down in the law designed for fixed term workers .

This dismissal was both substantially and procedurally unfair.

I conclude that the complainant was unfairly dismissed.

CA-00046623-002 claim under the Protection of Employees (fixed term work) Act 2003

The Complainant has submitted that he was never advised in writing as to the objective justification for offering him a fixed term as opposed to a contract of indefinite duration.

The Respondent sought more particulars for the claim and raised the statutory time limit under Section 41(6) of the Workplace Relations Act, 2015.

8. Written statements of employer

(1) Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is—

(a) arriving at a specific date,

(b) completing a specific task, or

(c) the occurrence of a specific event.

(2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.

(3) A written statement under subsection (1) or (2) is admissible as evidence in any proceedings under this Act.

(4) If it appears to [an adjudication officer] or the Labour Court in any proceedings under this Act—

(a) that an employer omitted to provide a written statement, or

(b) that a written statement is evasive or equivocal,

the adjudication officer or the Labour Court may draw any inference she considers just and equitable in the circumstances.

This claim was received by the WRC at 17.05 hrs on 11 October 2021 , almost  5 months after the conclusion of the employment in this case .

Section 41(6) of the WorkplaceRelations Act, 2015 governs my jurisdiction in this case.

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.

The essence of the claim made by the complainant and opposed by the respondent is that governing the renewal stage .

The first renewal of contract (section 8(2) was due strictly no later than 30 August 2019 . The letter of renewal in contract 2  issued on 23 October , 2019 .

This places the alleged contravention  as provided in the wording of the Act at the latest by the date of the renewal as August 30  , 2019 .

The claim therefore , is manifestly out of time .

The power to extend the time-limit was fully considered by the Labour Courtin Cementation Skanska v Carroll DWT 38/2003,

 The Court held that, in considering if “reasonable cause” existed, it was for the claimant to show that there were reasons which both explain the delay and afford an excuse for it.

“The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression ‘reasonable cause’ appears in statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time.”

This claim is manifestly out of time, the test in Section 41(8) has no application . There are no circumstances in which I can claim jurisdiction .

However , in accordance with Section 8(4) it is open to me to draw an inference if I identify that

(a) that an employer omitted to provide a written statement, or

(b) that a written statement is evasive or equivocal,

I have made such an inference that the respondent repeatedly displayed a mistaken view of their legal obligations in both the issuing and renewal of contracts in accordance with both the Protection of Employees (fixed term work) Act 2003 and the Directive  during the complainants tenure . Moran and Maloney v St Catherines College for Higher Education and Minister for Education and Science 20 ELR 143 and Waterford City council and Andrew Kennedy FTD 1235, applied

Given that the complainant was a Union member during his employment , I would have liked to have seen a Union/ Management agreement on the operation of the Protection of Employees (fixed term work) Act 2003 at this employment .

This claim is out of time and is not well founded .

CA-00046623-003 claim under the Protection of Employees (fixed term work) Act 2003

Section 11 11. Information and consultation

(1) Fixed-term employees shall be taken into account when calculating the threshold above which employees' representatives bodies may be constituted in an undertaking in accordance with section 4 of the Transnational Information and Consultation of Employees Act 1996.

(2) As far as practicable, employers shall consider providing information to employees'representatives about fixed-term work in the undertaking.

The Complainant has submitted that he was unaware of any information provided by the respondent about fixed term work arrangements .

The Respondent has rejected the claim and focussed on the complainant having been accompanied by a Trade Union representative during the grievance first raised on May 4, 2021.

I note that the Complainant stated in evidence that he was  not informed about the March 2021 vacancies at the plant . He said that he chased them up himself , submitted a CV and presumed this would trigger an interview as in 2019 . Mr Reilly had a different view of the competition as an opportunity to test the market to fill the vacancies .

I requested sight of the advertisements issued during that March 2021 interval of recruitment .

The complainant did not make a response to the respondents post hearing submission of February 20, 2023 .

There was a disparity in title of legal entity in both jobs . The external screenshot exhibited did not reflect the respondent name or the tenure of the position . the internal ad described as “ for noticeboard “ was headed by an Employer known as” IFF”. Once more , no tenure was referenced

None of this information had been shared with the employees representatives during the grievance meetings May 4 to 14 2021.

I noted that the complainant processed his application after asking around about job opportunities. He said that he had not seen an advertisement at the plant .

Section 10 of the Act places a focus on providing information on recruitment

Information on employment and training opportunities.

10.—(1) An employer shall inform a fixed-term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees.

(2) The information referred to in subsection (1) may be provided by means of a general announcement at a suitable place in the undertaking or establishment.

(3) As far as practicable, an employer shall facilitate access by a fixed-term employee to appropriate training opportunities to enhance his or her skills, career development and occupational mobility.

For me, I have established a breach of the legislation at Section 11(2). Given the pursuance of information on fixed term workers at the plant by the complainant and his representative (not present at hearing) during the grievance procedure.

I have placed a firm weighting on the grievance outcome dated the 14 May 2021 and I have identified that the respondent failed to comply with:

(2) As far as practicable, employers shall consider providing information to employees'representatives about fixed-term work in the undertaking.

“ The temporary role to which you refer has been filled prior to the ending of your existing role with the company on 17 May next . A suitable candidate was identified for that temporary position “

This for me demonstrates at close quarters a lack of consideration to providing information in the hands of the complainants representative about fixed term working in the undertaking .

I am satisfied that the Respondent was very open at hearing on the numbers of fixed term workers ever present in the undertaking and the reasons for their presence . However , the Act requires the respondent to consider providing information on fixed term working to the Union .

I am also encouraged by Mr Reillys assurances at hearing that the climate surrounding fixed term work has been reviewed and addressed since the circumstances in this case .

I have found the complaint to be well founded .

CA-00046623-001 claim for unfair dismissal

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the complainant was unfairly dismissed. I have not received the requested pay slips from the complainant.

I have studied the submitted loss and mitigation and the respondent response on this and on the overtime ( voluntary in nature )

I order the Respondent to pay the Complainant €32,668( value of 4 months pay )  as compensation, just and equitable , to reflect his financial loss of remuneration ( inclusive of benefits lost )

CA-00046623-002 claim under the Protection of Employees (fixed term work) Act 2003

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 14 of the Protection of Employees ( fixed term work ) Act , 2003 requires that I make a decision in accordance with Section 8 of that Act .

This claim is out of time and is not well founded .

CA-00046623-003 claim under the Protection of Employees (fixed term work) Act 2003

Section 14 of the Protection of Employees ( fixed term work ) Act , 2003 requires that I make a decision in accordance with Section 11 of that Act .

I have found the claim to be well founded . I order the Respondent to comply with the provisions of Section 11(2) .

Given that the lack of information on fixed term working formed a large part of the background to this case , I find that the complainant is entitled to recover compensation for the contravention of Section 11(2) of the Act .

I order the Respondent pay the Complainant €5,000 in compensation for the contravention of section 11(2) of the Act .