ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00035933

Parties:

Complaint:

Date of Adjudication Hearing:  12/09/2022

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This complaint was referred under Section 8 of the Unfair Dismissals Acts 1977-2015 to the Workplace Relations Commission (hereinafter ‘WRC’) on 7th November 2021.  Following delegation to me by the Director, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  The Complainant had originally referred parallel complaints to the WRC, comprising of a complaint of discriminatory dismissal under Section 77 of the Employment Equality Acts 1998-2015 and a complaint of unfair dismissal under Section 8 of the Unfair Dismissals Acts 1977-2015.  Section 101(4)(a) of the Employment Equality Act 1998 provides that in such circumstances, the complaint under the Employment Equality Act 1998 will be deemed to have been withdrawn unless, not later than 41 days from the date of notification that this Section applies from the WRC, the Complainant withdraws the complaint under the Unfair Dismissals Act 1977.  The WRC wrote to the Complainant notifying him that this Section applies on 13th November 2021 and on 29th November 2021, the Complainant confirmed in writing that he was opting to proceed with a complaint of unfair dismissal under Section 8 of the Unfair Dismissals Act 1977. 

At the outset, it was confirmed that whilst the Complainant had been employed under three consecutive fixed-term contracts which terminated upon the expiry of the third contract, there could be no objection to the WRC’s jurisdiction to hear this complaint of unfair dismissal as the latter contract did not comply with Section 2(2)(b) of the Unfair Dismissals Act 1977 providing: “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.”  Whilst the contracts were in writing and signed by the Parties, they did not contain the requisite waiver providing that this Act shall not apply to a dismissal consisting only of the expiry of the term. 

It was further confirmed that this complaint was being opposed on the basis that the Complainant’s employment was lawfully terminated upon the expiry of the latter contract to cover maternity leave thereby constituting a substantial ground justifying his dismissal under Section 6(1) of the Unfair Dismissals Act 1977.  In this respect, Section 2(2)(c) of the Unfair Dismissals Act 1977 provides: “dismissal where the employee’s employer at the commencement of the employment informs the employee in writing that the employment will terminate on the return to work with that employer of another employee who is absent from work while on protective leave or natal care absence, within the meaning of Part IV of the Maternity Protection Act 1994, or is absent from work attending ante-natal classes in accordance with section 15A (inserted by Section 8 of the Maternity Protection (Amendment) Act 2004), or for breastfeeding in accordance with section 15B (inserted by Section 9 of the Maternity Protection (Amendment) Act 2004), of the first-mentioned Act, and the dismissal of the first-mentioned employee duly occurs for the purpose of facilitating the return to work of that other employee.”  However, it was also conceded that as the Complainant had not been informed in writing beforehand that his employment would terminate on the return to work of the employee concerned from maternity leave as required under Section 2(2)(c) to exclude a complaint of unfair dismissal, there could be no objection to the WRC’s jurisdiction to hear this complaint on this basis either.

It was not in issue that the Complainant had the requisite 12 months’ continuous service required for referral of a complaint of unfair dismissal under Section 2(1)(a) of the Unfair Dismissals Act 1977 and had referred this complaint within the requisite 6-month period under Section 8(2)(a) of the Act.

I heard this complaint by remote hearing on 12th September 2022 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020. The Complainant was self-represented whilst the Respondent was represented by Ronan Daly Jermyn, Solicitors and the Complainant’s former Line Manager and a HR Director gave evidence on its behalf.  The Complainant was based in his home country of Egypt, his permission to remain in Ireland having expired.  Legal submissions and a booklet of documentation was furnished on behalf of the Respondent.  The changes to hearing procedure provided by the Workplace Relations (Miscellaneous Provisions) Act 2021 to meet the Supreme Court’s requirements in Zalewski 2021 IESC 24 were outlined to the Parties.  This hearing was held in public pursuant to Section 8(6) of the Unfair Dismissals Act 1977, as substituted by the Workplace Relations (Miscellaneous Provisions) Act 2021.  The Parties were also made aware that their names would be published within this decision and all of the evidence was heard under oath/affirmation.  As the Respondent bore the burden of proof to show that the Complainant’s dismissal was fair, evidence was given on its behalf first followed by the Complainant.  All of the evidence, documentation and submissions proffered herein have been fully considered.

Background:

The Complainant was employed by the Respondent, a financial services company on three consecutive fixed-term contracts between 10th June 2019 and 30th July 2021 when his employment was terminated.  He has referred a complaint of unfair dismissal under Section 8 of the Unfair Dismissals Act 1977 and seeks compensation by way of redress.  The Respondent contends that notwithstanding that the third and latter contract relied upon did not comply with Sections 2(2)(b) and 2(2)(c) of the Act, the Complainant’s employment lawfully terminated upon its expiry in circumstances where it was for the purpose of covering maternity leave.  It was submitted that this constituted a substantial ground justifying the Complainant’s dismissal under Section 6(1) of the Act. 

Summary of Respondent’s Case:

Uncontroverted Factual Background

The written submission on behalf of the Respondent outlined the factual background giving rise to this complaint.  It was confirmed that the Respondent is a financial services company registered in Galway.  It specialises in payment solutions for banks, merchants and tourists and employs over 2,300 employees worldwide with over 220 in its Irish operations.  The Complainant is an Egyptian national who came to Ireland in August 2018 as a student.  He had obtained a financial qualification from NUIG, had worked in various financial roles and held a Visa allowing him to work in Ireland. 

The Complainant commenced employment with the Respondent on 10th June 2019 and the Parties entered into three consecutive fixed-term contracts, namely, as a Financial Accountant from 10th June 2019 until 2nd August 2019, as a Financial Accountant from 1st August 2019 until 30th July 2020 and as a Finance Manager from 3rd August 2020 until 30th July 2021.  The contracts were signed by the Parties and included the job title, a clause referring to the contract as a ‘Fixed Term Contract’ and start/finish dates.  They did not include the purpose for each of the contracts or standard clause excluding the Unfair Dismissals Act 1977 upon expiry of the term.  A copy of all three contracts and related correspondence was furnished at the hearing.  Each of the three contracts contained a standard condition that the Complainant remain entitled to work legally within this jurisdiction.  The Complainant held a Visa /Work Permit allowing him to work for this period.  At all material times, his Line Manager was the Senior Finance Director in the Payments Division, Mr A.  The Respondent terminated the Complainant’s employment upon the expiry of the term of the third contract.  At the time of the termination of his employment, the Complainant was earning €56,000 gross per annum.

Direct Evidence of the Senior Finance Director in the Payments Division, Mr A

Mr A gave evidence under oath outlining the factual circumstances giving rise to this complaint from the Respondent’s perspective.  He confirmed that he is the Senior Finance Director in the Payments Division and was the Complainant’s Line Manager at all material times.  He outlined the nature of the Respondent’s business, his role and the roles/teams reporting to him including the Complainant. 

Mr A confirmed that the Complainant had initially applied for a role advertised in May-June 2019 to cover medical leave for a Financial Accountant.  The Complainant applied for and was interviewed for the position.  He was appointed as a Financial Accountant for the period from 10th June 2019 until 2nd August 2019 which tallied with the period of medical leave plus a one-week overlap. 

Mr A said that the Complainant had “hit the ground running” and proved that he was very capable within a short period of time.  The Respondent needed to commence a significant financial safeguarding project and Mr A identified the Complainant as a suitable candidate to undertake that work to senior management.  Accordingly, the Complainant was employed on a further fixed-term contract as a Financial Accountant from 1st August 2019 until 30th July 2020.  The Respondent assisted him with obtaining the requisite Visa / Work Permit accordingly.  He performed well within this role getting the project up and running.  Over the course of his second fixed-term contract, he also continued to be used as a resource for other project work and ‘business as usual’ financial accounting tasks to support the wider team.  The Respondent’s business had been significantly impacted by the Covid-19 Pandemic.  Mr A had numerous conversations with the Complainant about renewal of his contract.  He had verbally informed him that he did not foresee a renewal, but this would have to be decided closer to the end date depending upon available work at that stage.

In or around March 2020, a Senior Finance Manager, Ms B who also reported to Mr A, had informed him that she was intending to commence maternity leave from October 2020.  Over the next few months, Mr A, together with other senior management within the relevant areas, examined how the available resources might be best utilised to provide the necessary cover required.  After much consideration, it was decided that Ms B’s function as a Senior Finance Manager could be split out.  Part of her role involved a Payroll Review function and that was passed across to the Respondent’s Internal Audit Team.  Another part of her role involved the undertaking of tasks delegated from Mr A, which he subsumed back into his function.  Almost 50% of the function carried out by Ms B was carved out.  The remaining duties including the requirement to manage the staff that continued to report to that function remained to be covered.  It was felt that the Complainant had performed well to date and could offer a solution by undertaking both his existing ‘business as usual’ functions along with the remaining 50% of the Senior Finance Manager role.  Thus, the Parties entered into a third fixed-term contract which commenced on 3rd August 2020 and expired on 30th July 2021.  The Complainant’s Visa / Work Permit was extended accordingly.  He was given a promotion, his title being ‘Finance Manager’ and his salary rose from €47,000 to €56,000 gross per annum accordingly.

During the period of this latter contract, Mr A had various discussions with the Complainant regarding his prospect of future employment with the Respondent.  Mr A had told him that he was performing well, and they would talk closer to the end date in relation to what opportunities were available.  From November 2020, the Respondent was operating fully remotely owing to Covid and supported the Complainant in moving back to Egypt to be with his family and work from there.

Mr A recalled that in or around March-April 2020, Ms B had contacted him and indicated that she wanted to work a 3-day week upon her return from maternity leave to her role as a Senior Finance Manager.  The Complainant was not made aware of this at the time.  As this could not be facilitated in Mr A’s area owing to the nature of the work requiring a 5-day week, Ms B was facilitated with a 3-day week in another section where the nature of the work could accommodate same.  A Senior Finance Manager from another section with extensive experience, Ms C, was approached as a suitable candidate to take over Ms B's role.  This was with a view to developing the existing Senior Finance Manager role into a ‘Director of Finance’ role reporting to Mr A which had been envisaged. 

Mr A confirmed that the Respondent had made an enquiry regarding the Complainant’s entitlement to a further Work Permit to assess his availability in relation to its future work / plans.  Ultimately, it was determined that the Complainant was not to be part of these plans and Mr A conveyed this news to him by way of a remote meeting on 1st July 2021.  They had an amicable conversation wherein Mr A informed the Complainant that unfortunately there were no new opportunities and Ms B was returning from maternity leave.  Consequently, his contract would terminate on 30th July 2021 without renewal.  Mr A said he did not relay the arrangements regarding the swapping of Ms B and Ms C’s roles as it was not public knowledge.  Accordingly, the Complainant’s employment had terminated on 30th July 2021 and his Visa / Work Permit had expired on 4th August 2021.  Although Ms B did not return until October 2021, it would not have been possible to extend his employment accordingly as a new Work Permit would have been required.  Mr A recalled that the Complainant had been an integral part of the team and had been extremely accommodating in handing back. 

Finally, Mr A confirmed that whilst a Financial Accountant role reporting to the role that the Complainant had held had become available around the time of the termination of his employment, he had not applied for that role despite it being advertised internally and externally.  Mr A confirmed that the only reason as to why he had not been retained was Ms B’s return from maternity leave.

Cross-examination of the Senior Finance Director in the Payments Division, Mr A

The Complainant put it to Mr A that he had been unaware of the Financial Accountant role that had become available around the time of the termination of his employment, and it had not been offered to him.  Mr A agreed that he had not made him aware of this post or offered it to him during their conversations about the ending of his last contract but maintained that it had been publicly advertised.  The Complainant put it to Mr A that they had in fact discussed Ms B returning part-time and he had asked whether he could obtain at least a three-month extension to cover the other part of her role and/or apply for the Senior Finance Manager role.  Mr A did not recall this conversation. 

The Complainant put it to Mr A that at the time of the termination of his employment, he had been filling one full-time Financial Accountant role and the remaining 50% of Ms B’s role, thus 1.5 roles.  Mr A replied that although it had been a busy period, he did not accept that this was a fair representation.  However, he accepted that for the period that the Complainant was undertaking 50% of Ms B’s role, he had retained the financial accounting work assigned during his first contract.  As the project work assigned during his second contract had reduced, he had only filled one role. 

On further questioning by this Adjudication Officer, Mr A confirmed that the three contracts in question were only defined by date ranges and did not state the purpose for same i.e. to cover medical leave for the first contract, project work for the second contract or Ms B’s maternity leave for the third contract as contended by the Respondent.  He accepted that neither was the objective condition for the first contract or objective grounds justifying the renewal of the second and third contracts and failure to offer a contract of indefinite duration, ever put in writing to the Complainant as required under Section 8 of the Protection of Employees (Fixed-term Work) Act 2003.  Nor was the Complainant ever informed in writing that the third contract was to cover maternity leave.

Mr A also confirmed that Ms B did not in fact return to work until October 2021, some two months after the termination of the Complainant’s employment.  Mr A had covered the work that he had been undertaking and/or delegated it accordingly for the period until Ms B’s return.  He confirmed that the Complainant had not applied for the position of Senior Finance Manager filled by Ms C.  When it was advertised, the Complainant had enquired about it with him via WhatsApp.  In their exchange, Mr A had replied stating that someone internally had been earmarked for the position and so unfortunately it was not available.  It had been advertised to comply with the HR policy of advertising all roles, but no competition had been held and Ms C was appointed into the position.  Mr A confirmed that he had not discussed alternative roles with the Complainant as none had been available.  He had not offered him an appeal against the decision not to renew his third contract.

Direct Evidence of the HR Director

The HR Director responsible for the HR team in Ireland gave evidence outlining her involvement in relation to the termination of the Complainant’s employment upon the expiry of the third contract.  She confirmed that she was not party to Mr A’s call with the Complainant on 1st July 2021.  She was aware that the Complainant had queried the basis for the Respondent’s decision not to renew this contract in a subsequent email exchange with a former HR Director and copied to Mr A.  The former HR Director had replied on 12th July 2021 as follows: “Whilst I understand your disappointment on not being able to stay with us, please understand that a company has the right to end a fixed term contract at the end of the contract, and is not obliged to renew it or explain why it is not to be renewed.  It simply is a business and management decision based on resources and requirements.” 

Thereafter, the HR Director issued a letter dated 15th July 2021 to the Complainant stating as follows: “Following the meeting with your manager,(Mr A), on the 1st July 2021 we wish to confirm that the current fixed term contract arrangement will come to an end per the contract arrangement with you.  The last day with Planet will be 30th July 2021.  This is in compliance with the minimum notice period required by the fixed term contract arrangement.  The letter further stated: “Finally, we would like to thank you for your help and contribution to the company and we wish you all the best for the future.”  The HR Director confirmed that the letter contained no reference to Ms B’s return from maternity leave or her request for a 3-day week and proposed swap with Ms C.  She confirmed that the Complainant was never made aware of the arrangements to swap Ms B’s and Ms C’s roles.  She said that this would not have been appropriate as it was very specific to Ms B and her return.  The HR Director also confirmed that Ms B’s maternity leave commenced on 19th October 2020 and ended on 9th August 2021.  She had then taken a 5-week period of parental leave and annual leave, before returning on a 3-day week in October 2021, using up her remaining accrued annual leave.

The HR Director also confirmed that the Complainant had been facilitated with a return to Egypt to work from home remotely during Covid.  After the termination of his employment he had requested the Respondent to arrange for the shipping of his personal possessions left in his accommodation to Egypt as he was unable to return to Ireland.  The HR team had considered this request and decided that it was not appropriate to attend at his accommodation and take responsibility for having his possessions shipped to him.  In response to a complaint that the Respondent had refused to apply for a Critical Skills Work Permit that would have enabled the Complainant’s family to reside with him in Ireland, the HR Director said that a large salary increase would have been required for this Permit.  She confirmed that at all material times he had been employed under a valid Visa / Work Permit.

When asked to confirm why the Respondent considered the termination of the Complainant’s employment to be fair she stated: “we followed appropriateness in all our actions in dealing with the contract arrangements that we had with (the Complainant) in following through not only with the conversations we had with him… and continuous communication… but then the follow-through then on each of the three contracts where we didn’t allow anything to lapse.”  She confirmed that the Respondent was simply implementing what were believed to be compliant fixed-term contracts. 

Cross-examination of the HR Director

The Complainant questioned the HR Director about the type of Visa / Work Permit that the Respondent had opted for to cover his contracts (with reference to his complaint that it did not permit his family to reside with him in Ireland) and other issues not relevant to this complaint. 

Legal Submissions

The Respondent’s Solicitor was invited to refer to any caselaw addressing the approach to be taken by the WRC in the particular circumstances and submitted that there was no relevant caselaw.  Whilst it was accepted on behalf of the Respondent that the objective condition for the first contract or objective grounds justifying the renewal of the second and third contracts and the failure to offer a contract of indefinite duration, were not put in writing to the Complainant as required under Section 8 of the Protection of Employees (Fixed-term Work) Act 2003, it was pointed out that this is not a complaint under that Act.  Likewise, the total period of service by the Complainant as a fixed-term employee stretched from June 2019 to July 2021 and at just over two years, fell far short of the four-year period required for any potential claim for a contract of indefinite duration under that Act.

As set out above, there was no objection to the WRC’s jurisdiction to hear this complaint of unfair dismissal as the fixed-term contracts underlying the Complainant’s employment did not contain the exclusion clause under Section 2(2)(b) of the Unfair Dismissals Act 1977, to the effect that the Act shall not apply to a dismissal consisting only of the expiry of the contract or cesser of its purpose. 

It was confirmed that reliance was being placed upon the broad generality of Section 6(1) of the Unfair Dismissals Act 1977 to contend that the Complainant’s dismissal was fair, and the particular factual matrix including the ending of maternity leave cover for Ms B constituted a substantial ground justifying his dismissal.  In this respect, Section 6(1) provides: “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”  The factual scenarios prescribed by Section 6(2) as automatically giving rise to an unfair dismissal were not present.  It was also accepted that the non-exhaustive list of scenarios where a dismissal may be deemed fair under Section 6(4) were not present either.

It was submitted on behalf of the Respondent that there was clear, factual evidence that the substantial ground justifying the Complainant’s dismissal related to the genuine decision not to renew his third and final fixed-term contract on the basis that maternity leave cover was no longer required.  The purpose of the final fixed-term contract/renewal was to cover the remaining duties of Ms B, the Senior Finance Manager, whilst on maternity leave.  Non-renewal of a fixed-term or specified purpose contract by reason of the expiry of time or the cesser of the purpose is long accepted as not falling within the scope of the Unfair Dismissals Act 1977 and jurisdiction of the WRC as provided for by Section 2(2)(b) (as outlined above).  Whilst appreciating that the Respondent was seeking to “put a square peg statutorily into a round hole” in circumstances where the contract relied upon did not include this waiver,it remained the truth that regardless of same, it was not renewed as maternity leave cover for Ms B was no longer required.  Accordingly, this constituted a substantial ground justifying the Complainant’s dismissal and no other considerations were in play. 

It was further submitted that the Complainant was fully aware of the fact that the third and final contract he entered into was for a fixed term, given that he had repeatedly enquired as to what would happen upon its expiry.  He was also aware of the inbuilt notice of termination of his employment at the point at which he entered into this contract.  He was fully aware of the purpose of the contract to cover maternity leave and of its tenure.  Also, no commitments were given to the Complainant in relation to a further extension beyond the third fixed-term contract.  There is no documentation to support such a proposition and such a commitment cannot be inferred from the enquiries made as to available Work Permits.  The Complainant’s actions and contents of his complaint form make it clear that, regardless of his objection to non-renewal, at all material times he was aware that he was a fixed-term worker.  The Respondent engaged with the Complainant one month in advance of his termination date but with absolute justification, was not in a position to share the personal data regarding accommodating Ms B’s request to return on a 3-day week.  The basis for swapping Ms B’s and Ms C’s roles in October 2021 and for not considering the Complainant as suitable for Ms B’s former role as it was to be evolved to a ‘Director of Finance’ role have been fully explained by Mr A.  Thus, the Respondent had acted in as fair and open a manner as was permissible in the circumstances and the Complainant’s dismissal was substantially fair.

In relation to mitigation, it was submitted that from the moment he ceased employment with the Respondent, the Complainant had no Work Permit to secure a job in Ireland and take up alternative employment.  Without prejudice to the Respondent’s position that his dismissal was fair, any losses incurred are limited to four weeks remuneration as he was unable to work in Ireland once his employment with the Respondent had ceased, analogous to someone on sick leave.  There is also something of an anomaly in circumstances where his current earnings represent a good salary in Egypt whilst what he earned with the Respondent represented a good salary in Ireland.  His decision to relocate and remain in Egypt and the unfortunate situation whereby he was unable to successfully apply for a job in Ireland cannot be held against the Respondent in terms of calculating any losses. 

Summary of Complainant’s Case:

Direct Evidence of the Complainant

The Complainant gave evidence on oath confirming that he was employed by the Respondent from 10th June 2019 until 30th July 2021.  He had come to Ireland as a student in August 2018.  He had responded to an advertisement and following a successful application and interview, he joined the Respondent on a fixed-term contract as a Financial Accountant for a six-week period to replace an Accountant who was on medical leave.  This contract was from 10th June 2019 until 2nd August 2019.  Upon the end of this contract, he was granted another one-year contract as his Manager, Mr A, believed that he would be a good asset and addition to the Respondent.  He had entered into a second contract from 1st August 2019 until 31st July 2020.  In May 2020, the Complainant received notice that he would have to leave at the end of this contract due to Covid-related cost cuts.  Notwithstanding this, he had agreed to sign-off on a 20% pay cut as a gesture of goodwill.  However, before this contract ended, Mr A had notified him that he could have further employment with the Respondent providing cover for the Senior Finance Manager, Ms B, who was due to take maternity leave.  Accordingly, he received a third fixed-term contract from 3rd August 2020 until 30th July 2021. 

The Complainant outlined his section’s structure before he commenced his third fixed-term contract.  There was a Senior Finance Manager, four Accounting Assistants in Ireland, and two Accountants in the USA reporting to the Financial Controller.  When he commenced the third contract, two of the Accounting Assistants had resigned and were not replaced.  A part-qualified Accountant was hired but was utilised elsewhere.  Consequently, the Complainant was covering two full time jobs, being Ms B’s role as Senior Finance Manager and one of the resigned Accounting Assistant positions.

In November 2020, the Complainant had asked Mr A and HR if he could work from home in Egypt as the Respondent was already operating fully remotely and so that he could be with his family.  There was no issue since Egypt and Ireland have a double tax treaty.  Accordingly, he moved back to Egypt.  He had retained his accommodation in Ireland so he could return when required by the Respondent.

In April 2021, the Complainant was assigned extended responsibility with the USA team reporting directly to him which he had regarded as promotion to Senior Finance Manager.  From May 2021, he had discussions with Mr A about the renewal of his contract and whether it would be another fixed-term contract or a permanent contract.  Mr A had confirmed that Ms B would be returning to work in October 2021 on a part-time basis and the Complainant would still be required for this role.  There had also been discussion around Work Permits and he had emailed Mr A on 26th May 2021 outlining the available options and related fees, included within the Respondent’s documentation submitted.

Thereafter, the Complainant received the termination letter dated 15th July 2021 as outlined above.  He made the following points in relation to the termination of his employment on 30th July 2021.

(1)  If the Complainant’s third contract was for the purpose of covering Ms B’s maternity leave, at the very minimum it should have been extended until her return to work in October 2021.

(2)  The Complainant’s last performance review along with his extended responsibilities and promotion showed him to be a good performer, so the least that he could expect from the Respondent was a fair process and an equal opportunity to apply for Ms B’s former role and/or the new Financial Accountant role.  Upon giving him notice, Mr A had informed him that his position would be replaced with a project assigned member, the Senior Finance Manager returning from maternity leave and the new Financial Accountant on a lower salary.  As there was an assumption that he would not accept a lower salary, he was never given the option of applying for the Financial Accountant role.  Additionally, his own existing role of Senior Finance Manager was advertised on LinkedIn in October 2021 and Mr A had informed him that it was to be filled internally.  He also contended that he had been overburdened with work during the tenure of his employment only to have his employment terminated and replaced by three people when the situation had improved.

(3)  Whilst working remotely from Egypt, the Complainant had left all his personal belongings in his accommodation in Galway as he was prepared to return as soon as required.  As a consequence of his Visa / Work Permit expiring on the termination of his employment whilst he was still in Egypt, his belongings were stranded in Galway and the Respondent refused to assist with their return.

The Complainant further submitted that the unfair manner in which the Respondent had treated him had affected him very badly.  It had taken him until 31st October 2021 to find a new job in Egypt with a lower salary rising to €2,100 net per month as at the date of the hearing.  He confirmed that this would be considered a good salary in Egypt.  At the time of the termination of his employment, he was earning €56,000 gross or €4,660 gross per month equating to €3,200 net per month.  He sought compensation for his financial loss by way of redress.  He claimed for his loss of salary between 30th July 2021 and 31st October 2021 and for the shortfall in his salary thereafter.  With any award granted, he said that he hoped to be able to return to Ireland and work here again.  Finally, the Complainant confirmed that he did not have access to professional advice in relation to putting forward this complaint and his information was limited to that which he could find on the internet. 

Cross-examination of the Complainant

The Respondent’s Solicitor put its position to the Complainant being that the substantial reason justifying his dismissal was that maternity leave cover for Ms B was no longer required.  The Complainant replied that he did not accept that this was the case.  He was referred to his complaint form and agreed that he had joined the Respondent on an initial fixed-term contract.  He was referred to the lines: “I got a new another one year contract FTC to replace the maternity leave and cover her from 3rd of August till 30th of July 2021.” and “I was clearly hired as maternity leave cover, and my understanding that my contract should be extended for the same period as the cover purpose is extended, and I was told she won’t be returning before October 2021.”  He replied that maternity leave cover was the maximum that he could secure at the time and accepted that his latter fixed-term contract was to cover maternity leave.  However, in the course of this contract, a window had opened up for him to replace the Senior Finance Manager and in fact Ms B had not returned from maternity leave until October 2021.  It was put to the Complainant that in fact Ms B’s maternity leave had ceased as expected and this extension was a different type of leave.  It was also put to the Complainant that in fact there had been a swap of roles between Ms B and Ms C and Ms B’s role had been earmarked for Ms C.  The Complainant maintained that he should have been afforded an opportunity to apply for Ms B’s role and Ms C had already joined the team in May 2021.  It was pointed out to him that the vacancy for Ms B’s position had not arisen until October 2021.

It was put to the Complainant that he had not been undertaking the full Senior Finance Manager role or 1.5 roles during the third contract as contended because the project work from his second contract had diminished.  He disagreed outlining the various functions he was required to undertake.

It was put to the Complainant that based upon the information he had provided to Mr A on available Work Permits, a salary of €64,000 was required for a Critical Skills Work Permit when his salary had been €56,000.  The Complainant replied that he had been providing options to the Respondent and there was a second option for a one-year General Employment Work Permit.  It was confirmed by the Respondent’s Solicitor that renewing his Work Permit had not been a bureaucratic difficulty. 

In relation to the Complainant’s claim for financial loss, it was put to him that after the termination of his employment with the Respondent, he would not have been able to lawfully take up work with another employer in Ireland without another Work Permit.  This was in circumstances where his current Work Permit was due to expire.  The Complainant confirmed that he had applied for 70-80 jobs in Ireland, receiving interviews in respect of only two positions which had been unsuccessful.

Findings and Conclusions:

The Complainant was employed by the Respondent, a financial services company on three consecutive fixed-term contracts between 10th June 2019 and 30th July 2021 when his employment was terminated.  The facts are not in issue save than as to the extent to which the Complainant was covering other roles during the third contract.  The Complainant has referred a complaint of unfair dismissal under Section 8 of the Unfair Dismissals Act 1977 and seeks compensation by way of remedy.  The Respondent contends that notwithstanding that the fixed-term contracts in question did not comply with the criteria under Section 2(2)(b) and 2(2)(c) of the Unfair Dismissals Acts 1977, required to exclude a complaint of unfair dismissal, the Complainant’s employment was lawfully terminated upon the expiry of the third and latter contract to cover maternity leave.  In this respect, the Respondent relies upon the catch-all provision of Section 6(1) of the Unfair Dismissals Act 1977 to contend that this constituted a substantial ground justifying the Complainant’s dismissal. 

It is necessary to set out the requisite statutory provisions that apply to this complaint as follows:

Section 1 of the Unfair Dismissals Act 1977 provides that ‘dismissal’ in relation to an employee for the purposes of the Act includes: “(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;”  Section 2A provides safeguards against the use of successive fixed-term contracts to avoid liability under the Act.  As outlined above, Section 2(2)(b) provides for an exclusion under the Act in relation to fixed-term and specified purpose contracts where “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.”  It was conceded by the Respondent that although the latter contract was in writing and signed by the Parties herein, the omission of a clause to the effect that the Unfair Dismissals Act 1977 did not apply upon the expiry of the term, meant that the Complainant was entitled to pursue this complaint of unfair dismissal.

In Redmond on Unfair Dismissal (Third Edition, 2017) at paragraph 23.76, Desmond Ryan outlines the position: “The formula is straightforward and must be followed.  The conditions should be satisfied at the time the contract is made.  Without a waiver in the terms above, the Unfair Dismissals Act applies to all temporary contracts, requiring the employer to adduce substantial grounds to justify termination.  A waiver only excludes liability that would otherwise attach to termination upon expiry of the term or cesser of the purpose.  An employee whose fixed term is ‘unfixed’ within the term or before the completion of the purpose, say, for poor performance or misconduct, will be eligible to challenge dismissal provided the other requirements of the legislation are satisfied.”  It follows that an employee on a fixed-term contract that either does not comply with Section 2(2)(b) of the Unfair Dismissals Act 1977 or has been terminated for a reason other than the expiry of its term or cesser of its purpose, is entitled to have a complaint of unfair dismissal considered in accordance with the principles applicable to all complaints of unfair dismissal.

This approach was adopted in the case of Sheehan -v- Dublin Tribune Ltd, UD914/91, where there was an absence of such a waiver and the former Employment Appeals Tribunal (EAT) held: “It is debateable whether or not the claimant’s employment ended by reason of the termination of the fixed contract of employment.  However, where the contract of employment does not specifically provide that the Unfair Dismissals Acts 1977 and 1991 shall not apply to a dismissal consisting of the expiry or cesser aforesaid, Section 2(2)(b) does not apply.  No substantial ground was shown by the respondent to justify the dismissal, which must therefore, be deemed unfair.”  Likewise in O’Connor -v- Kilnamanagh Family Recreation Centre Ltd, UD1102/93, where an employee had been employed on three fixed-term contracts on a CE Scheme which had not been in writing, the EAT upheld a complaint of unfair dismissal as the contracts did not comply with the requirements of Section 2(2)(b) of the Act and the employer had not put forward any substantial grounds justifying dismissal.

As relied upon by the Respondent, Section 6(1) of the Unfair Dismissals Act 1977 provides: “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”  Section 6(2) provides a list of specific circumstances which may automatically give rise to an unfair dismissal, none of which apply herein.  Neither does Section 6(4) apply providing: “Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee, (c) the redundancy of the employee, and (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”  Section 6(6) provides: “In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”  Accordingly, the burden of proof rests with the Respondent to show that the dismissal was fair.

In Redmond on Unfair Dismissal (Third Edition, 2017) at paragraph 18.01, Desmond Ryan refers to Section 6(1) of the Unfair Dismissals Act 1977 as providing “a general residual category of reasons justifying dismissal, not restricted to those otherwise listed in subs (4) of s 6 of the Unfair Dismissals Act 1977…  The requirement of a ‘substantial’ ground deters employers for dismissing for a residual reason.” Chapter 18 is dedicated to the factual scenarios found by employment fora to fall within Section 6(1) including dismissals pertaining to employers’ interests, third-party pressure and company reorganisation.  None of the scenarios includes the particular circumstances arising herein as constituting a substantial ground justifying dismissal but that is not to discount the possibility.

Regardless of whether the substantial ground for dismissal falls within Section 6(1) or Section 6(4), it is well-established that the dismissal must be both substantially and procedurally fair in accordance with the principles of natural and constitutional justice e.g. Re: Haughey (1971) IR 217.  In this respect, Desmond Ryan observes: “There are two stages:  First, an employer’s reason for dismissal must be identified.  Second, an employer must be able to justify its decision to dismiss.  The test of reasonableness is applied to determine the fairness or unfairness of its decision.” [Redmond on Unfair Dismissal (Third Edition, 2017) at paragraph 13.01]  The requirement for reasonableness is enshrined in Section 6(7) of the Unfair Dismissals Act 1977 which provides: “Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and…”  In The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, a complaint of unfair dismissal arising from misconduct on appeal from the Circuit Court, Mr Justice Noonan elaborated on what was required by Section 6(7) of the Unfair Dismissals Acts as follows: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal.  Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal.  That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer.  The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.” 

Finally, Section 7 of the Unfair Dismissals Act 1977 provides for the available redress and Section 8 provides for the referral of a complaint of unfair dismissal to the WRC and determination of same.

The Respondent has identified the substantial ground justifying the Complainant’s dismissal as being that maternity leave cover for Ms B was no longer required.  However, it was conceded that this was not put in writing to the Complainant beforehand as required by Section 2(2)(c) of the Unfair Dismissals Act 1977 to exclude a complaint of unfair dismissal.  For this exclusion to have application, Section 2(2)(c) also requires that the “the dismissal of the first-mentioned employee duly occurs for the purpose of facilitating the return to work of that other employee.”  Where the return-to-work date from maternity leave is unclear, Ryan observes: “There is nothing to prevent an employer, of course, from double-bolting the door by inserting a waiver, in compliance with s 2(2)(b).” [Redmond on Unfair Dismissal (Third Edition, 2017) at paragraph 23.90]  However, and as outlined above, the requisite waiver had not been inserted into the contract leaving the door swinging wide open.  Thus, in the absence of compliance with Sections 2(2)(b) and 2(2)(c) of the Unfair Dismissals Act 1977, this reason i.e. to cover another employee’s maternity leave, falls to be considered under the catch-all provision of Section 6(1) of the Act.  It is therefore necessary to assess whether having regard to all the circumstances, this constitutes a substantial ground justifying the Complainant’s dismissal.  Rather than substituting this Adjudicator’s judgement for that of the Respondent, it is necessary to consider whether its response in the particular circumstances was that of a reasonable employer.

First and foremost, I find the admitted lack of adherence to the relevant statutory provisions under both the Unfair Dismissals Act 1977 and the Protection of Employees (Fixed-term Work) Act 2003 difficult to reconcile with the contention that the Respondent had acted reasonably, given its size and resources.  To simply ignore the statutory safeguards in place would render them a nullity.  Secondly, I do not accept the Respondent’s position that the Complainant’s dismissal was justified by reason of maternity leave cover no longer being required, and on balance, find that its response in the particular circumstances was not that of a reasonable employer for the following reasons:

(1)  It is common case that Ms B did not in fact return to work immediately after the completion of her maternity leave and returned in October 2021 to a different position than her former role being partially covered by the Complainant.  Thus, the Complainant’s dismissal on 30th July 2021 was not required to facilitate her return to work.  However, it appears that no efforts were made to extend his employment on any basis accordingly.  Instead, other persons covered this work until Ms C was appointed to Ms B’s position in October 2021.  The submission that a new Work Permit would have been required does not tally with the contention that there was no bureaucratic issue with renewal. 

(2)  The Complainant had clearly impressed the Respondent during his tenure of employment and was a valued employee such that he had been offered increasing responsibilities and a promotion in terms of title and salary.  It is not in issue that the Complainant performed functions that rolled over from one contract to the other and on the Respondent’s evidence only 50% of the third contract was to cover the maternity leave role of Ms B.  For this reason, I do not accept that the Complainant’s contract was solely for the purpose of covering maternity leave and accordingly all the work he was undertaking ceased upon Ms B’s completion of maternity leave.  At a minimum he would still have been required to undertake the other functions which had rolled over and in the absence of any evidence that these functions were ceasing, would have been entitled to continue this work.

(3)  On Mr A’s evidence, another role or a Financial Accountant, albeit with a lower salary had become available around the same time as the termination of the Complainant’s employment.  It was not disputed that this role entailed some of the work that he had been undertaking during his third contract.  Thus, and notwithstanding any impact from Covid, there was clearly work that the Complainant could undertake available.  However, this role was never offered to him despite the Respondent’s position that renewal of his Visa / Work Permit was apparently not the issue. 

(4)  I further find that the Respondent acted unreasonably in keeping the Complainant in the dark about its plans to swap Ms B’s and Ms C’s roles and develop Ms B’s former role to ‘Director of Finance’.  I do not accept its reasoning for not disclosing these details to the Complainant because “it was not public knowledge”.  Indeed, details of Ms B’s maternity leave cover had already been discussed with the Complainant before he had commenced the third contract.  It would have been quite possible for Mr A to have informed the Complainant of these plans without infringing upon anyone’s privacy.  However, not only was the Complainant kept completely in the dark about these arrangements, but he was also discouraged from applying for the upgraded position when Ms C had been earmarked for same and appointed without competition in October 2021.  The fact that the role was only advertised to comply with HR protocol meant that this had no effect in practice. 

(5)  I further reject the Respondent’s contention that notwithstanding the shortcomings with the contracts in question, there was no unfairness because the Complainant had acknowledged the fixed-term nature of his employment and the purpose of the third contract for maternity leave cover.  Aside from the fact that he did not have the benefit of professional advice and direction on the presentation of this complaint before the WRC, it was clear that he did not regard the third contract as solely covering maternity leave and had acquired an expectation of future employment. 

(6)  Furthermore, I find that the Complainant was not afforded the due process that might be expected in the particular circumstances from a company of the size and with the resources of the Respondent.  In particular, the Complainant was not offered any representation or appeals process.  No reasons for the termination of employment including any reference to the completion of Ms B’s maternity leave were included in the letter giving notice of the termination of his employment.  Throughout, HR appear to have been under the misapprehension that the Respondent was immune from due process by virtue of the existence of a fixed-term contract and were not alert to its shortcomings readily acknowledged at this hearing.  Even after the Complainant questioned the Respondent’s decision to terminate his employment in writing before his termination, no review was undertaken and he was simply informed that the Respondent “has the right to end a fixed term contract at the end of the contract, and is not obliged to renew it or explain why it is not to be renewed.  It simply is a business and management decision based on resources and requirements.” 

(7)  Finally, I find it particularly perturbing that at the time of the termination of his employment, the Complainant was residing in Egypt (albeit at his request during Covid when the Respondent had been operating fully remotely) and unable to return to the jurisdiction given the imminent expiry of his Visa / Work Permit.  As such, he was in a particularly vulnerable position given that he could not attend in person to address the situation or avail of resources within this jurisdiction that may have assisted him.  As a consequence, he was unable to recover his personal belongings from his accommodation and his ability to apply for alternative employment in Ireland was curtailed.

Having regard to all of the circumstances, I find that the Complainant’s dismissal was unfair.

Decision:

Section 8 of the Unfair Dismissals Acts 1977-2015 requires that I make a decision in relation to a complaint of unfair dismissal.  For the aforesaid reasons, I find that the Complainant was unfairly dismissed by the Respondent.  Section 7(1) sets out the various forms of available redress including reinstatement, re-engagement and financial compensation as the Adjudication Officer “as the case may be, considers appropriate having regard to all the circumstances.”  Section 7(1)(c)(i) provides for compensation of up to 104 weeks remuneration in respect of the employment from which an employee was dismissed for “financial loss” attributable to the dismissal.  Section 7(1)(c)(ii) provides for compensation of up to four weeks remuneration if no financial loss was incurred by an employee.  Section 7(2) sets out the various factors to be considered in determining the amount of compensation payable under Section 7(1) including: (a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, (b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee, (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,… (f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.  Section 7(3) further provides that: ““financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;”. 

In terms of losses, the Complainant claims for three months loss of salary between the termination of his employment and finding a new job in Egypt and for future losses owing to his lower salary of €2,100 net per month representing a 35% shortfall on his salary of €3,200 net per month with the Respondent.  The Complainant also gave evidence of unsuccessfully applying for 70-80 jobs in Ireland from outside the jurisdiction and his hope to return with the assistance of any award.

It was the Respondent’s position that from the moment he ceased employment with the Respondent, the Complainant had no Work Permit to secure a job in Ireland and take up alternative employment.  Without prejudice to the Respondent’s position that his dismissal was fair, any losses incurred are limited to four weeks remuneration as he was unable to work in Ireland once his employment with the Respondent had ceased, analogous to someone on sick leave.  There is also something of an anomaly in circumstances where his current earnings represent a good salary in Egypt whilst what he earned with the Respondent represented a good salary in Ireland.  His decision to relocate and remain in Egypt and the unfortunate situation whereby he was unable to successfully apply for a job in Ireland cannot be held against the Respondent in terms of calculating any losses. 

Noting the definition of ‘financial loss’, any award of compensation includes any actual loss and any estimated prospective loss of income attributable to the dismissal.  Essentially, it is aimed at putting the employee back into the position s/he would have been in had the unfair dismissal not occurred subject to Section 7(2).  In this respect, I do not accept the Respondent’s submissions in relation to compensation.  Although the Complainant had returned to Egypt to work remotely during Covid, based upon the undisputed evidence, he had remained there solely as a consequence of the Respondent’s decision to terminate his employment at a point when his Visa / Work Permit was due to run out.  It is probable that had his employment not been terminated at that point, he would still be working in Ireland for the Respondent or a similar company on a similar or higher salary based upon his rate of progression.  I have factored in his three months loss of salary, shortfall in new salary and consequent future loss.  I have also considered the fact that he would not have necessarily been assured of the same position and/or of full-time work going forward had his employment properly continued with the Respondent and reduced the award accordingly.  I find that the Complainant’s financial loss was wholly attributable to the actions, omissions and conduct of the Respondent.  I am also satisfied that he has taken all reasonable measures to mitigate his losses and was at a significant disadvantage in terms of applying for positions in Ireland from Egypt.  I therefore consider it appropriate to award the Complainant €28,000 in compensation (subject to any lawful deductions) and direct that this sum is paid by the Respondent within 42 days herewith.

Dated:   24-07-2023

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Sections 1, 2(2)(b) & 2(2)(c), 6, 7 and 8 of the Unfair Dismissals Acts 1977-2015 – non-renewal of consecutive fixed-term contracts – effect of non-compliance with the requirements of Section 2(2)(b) [termination on expiry of fixed-term contract] and Section 2(2)(c) [maternity leave cover] to exclude a complaint of unfair dismissal – whether end of maternity leave cover constitutes a substantial ground justifying dismissal pursuant to Section 6(1) of the Unfair Dismissals Act 1977