Complainant

Respondent

Anonymised Parties

A Worker

A Health Service Provider

Representatives

Cillian Mc Govern BL, Crushell & Co

Conor White, Comyn Kelleher Tobin LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00049199-001

15/03/2022

The complainant was employed in an administrative capacity on two fixed term contracts. The first contract was a three-month contract commencing on 24th August 2020 followed by a twelve-month contract from 24th November 2020 up to 23rd November 2021. The complainant’s employment was terminated on 23rd November 2021. The complainant submitted a complaint to the Workplace Relations Commission under the Unfair Dismissals Acts, 1977 -2015 on 15th March 2022.

The complainant’s representative outlined that the two contracts of employment did not outline the duties of the job and no job description was provided even though the contract stated, ‘The main duties of your position are set out in the attached job description’.

The representative outlined that oral evidence would be given that there were assurances that the post would be made permanent over time. The complainant was treated unfairly particularly given her dedication and performance in the role.

Summary of Complainant’s Evidence

The complainant gave evidence of how she was recruited to the post and that she was informed by her line manager before taking up the post that her temporary contracts would roll over and that she would be made permanent after 4 years.

Her duties were finance support and then she was redeployed on two occasions to Covid related work, from 6th January 2021 to 9th April 2021 and then from 19th April 2021 to June 2021. She explained that she trained other staff on Excel and referred to her probationary report signed by her line manager on 11th August 2021 which confirmed the nature of her role.

She outlined that there were tensions with other staff on how work was assigned and reported to senior management particularly when there was a change of manager in April 2021. She said she brought her concerns to her line manager. She felt that despite her degree qualifications and work output that other staff were getting more recognition and progressing in their roles. She undertook a considerable number of online courses to improve her skills and be familiar with practices and procedures.

She was informed on 1st October 2021 that her contract would not be renewed.  Over the coming weeks she was upset and stressed, and her GP signed her off on sick leave.

Since her employment was terminated, she applied for some jobs and upskilled by doing a technical course. She obtained employment from 25th July 2022 to 28th April 2023.

The Complainant was cross-examined on how she obtained the post and left a previous job on verbal assurances of permanency. She was questioned on the training she undertook which included ‘dignity at work’ and ‘open disclosure’ which should have informed her on how to pursue a complaint. She was questioned on the assistance she got from line management on applying for new roles and other opportunities available within a commutable distance.

She outlined that she had no trust in management particularly as she was told by line management that her concerns would not be taken seriously.

 On re-examination, it was confirmed that the advice from management to pursue a grievance was received in January 2022 when her employment had ended. She clarified that this is why she had not made a formal grievance complaint arising from issues within the office with colleagues.

The respondent representative denied there was a dismissal as the reason for the termination was the expiry of the fixed term contract on 23rd November 2021. The Unfair Dismissal Act provides for certain exemptions under section 2 such as the expiry of a fixed term contract.

The respondent produced a witness, who was the complainant’s line manager.

Summary of Line Manager’s Evidence

The line manager described her supervisory role and then gave evidence that she had informed the complainant at a meeting on 1st October 2021 that her contract would not be renewed. She stated that it was at this meeting that the complainant raised several issues in relation to colleagues and that she advised her to write to her on her complaints. She stated that the complainant had reverted to her on 12th October 2021 and regretted making the earlier comments about colleagues.

She described the complainant’s role as support to the business function and to manage the emergency response to Covid. She stated that the complainant got some initial training from a finance manager and had undertaken a lot of on-line training as there was no in person training due to Covid restrictions. She stated that the complainant had been encouraged to apply for other posts and that the commute should not have restricted the complainant from applying for these posts.

She outlined that the workload at that time was being diverted back to a regional office and there was a change in how ‘Covid and Health and Wellbeing work’ was being managed.

Under cross examination, the line manager was questioned on her response to the complaints raised at the meeting on 1st October 2021. She was questioned on the informality of the appointment and the lack of a job description which was to be forwarded to the complainant on appointment. She was questioned on the lack of clarity of the role that was assigned to the complainant. The role could not have been exclusively based on Covid as the complainant was re-assigned on two occasions to a Covid role.

When questioned on the assurance of permanency which was alleged by the complainant, the line manager denied giving an assurance, particularly as she had no authority on HR permanent appointments.

She was questioned on the grading of posts within the office.  

Preliminary Issue of Jurisdiction

As the respondent representative has raised the issue of exclusions under section 2(2) (b) of the Act, this issue needs to be decided upon in the first instance.

Section 2(2) (b) states ‘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 in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.’

The particulars of the complainants two contracts are clear. The first contract was for 3-months up to 24th November 2020 and the 2nd contract was from 24th November to 23rd November 2021 (date of termination). Although the facts of Conaty are different, Simmons J used the opportunity to summarise the effects of the exclusions in a general sense. At paragraph 61 of the summary judgment, his specific interpretation of 2(2) (b) is:

 ‘The provisions of subsection 2 (2) (b) carve out an exception to the general rights under the Unfair Dismissals Act. As such, same fall to be interpreted strictly.’

He adds in paragraph 62, that the ‘exclusion’ can be characterised as a ‘waiver’. He then states that:

 ‘The contract must record the disapplication of the Unfair Dismissals Act, and the employee’s agreement to same must be confirmed by their signing of the written agreement. The exception is not, therefore, automatic, but rather necessitates an informed decision by the employee.’

In this case, the complainant and the respondent have duly signed the 2nd contract in advance of its commencement. However, on a closer examination of the contract, it does not disapply the Unfair Dismissals Act.

In paragraph 68, Simmons J states that the language of a contract must be unequivocal in order to come within the exemption.

At paragraph 70, he says this requires an assessment of the contractual arrangements between the parties in the round and at paragraph 71 he refers to the history of employment as a factor.

Towards the end of the complainant’s previous 3-month contract she was presented with a contract which did not contain the required wording of the exemption/waiver of her rights under the Unfair Dismissals Act. At this point, the respondent was also aware that the new contract would have brought her over the 1-year service which provided a statutory entitlement under the Act to pursue a case. Therefore, it was an omission by the respondent to present the contract without clearly including the waiver clause.

At paragraph 73, Simmons J comments that:

‘There is an implicit obligation on an employer to put an employee on notice that the entering into a particular contract will entail the loss of statutory rights previously acquired by the employee’.

The above paragraph specifically refers to Conaty as she had already acquired statutory rights to a permanent contract. For the complainant in this case, she would be acquiring the right to take a case under the Act once she had acquired the 1-year service. Effectively, the respondent is now seeking to deny this statutory right of the complainant despite having not followed the strict criteria of wording the contract appropriately.

I do not agree with the respondent’s argument that the complainant in this case is exempt from pursuing a case under the Unfair Dismissals legislation. For the above reasons, I decide that I have jurisdiction to hear the unfair dismissals case.

Finding under Unfair Dismissals Act

In accordance with the Act, the onus falls on the respondent to prove that the dismissal was fair. Although the respondent is relying on the end date of the contract as being an adequate reason for dismissal, there is also a reliance on the rationalisation of Covid work and the management of this work from the regional office.

Although an end date on a contract may have some relevance to ascertain whether a dismissal is fair, this date should also be consistent with the other terms of the contract and reasons for the employment. In effect, the respondent is saying that there was a limited amount of work or a change in the location of where the work is to be performed.

Section 6 (4) of the Act states that the dismissal is not an unfair dismissal if it results wholly or mainly from one or more of the following:

(a)……

(b)……

(c) the redundancy of the employee, and

(d)….

I have not included the full sections as there was no issue with the complainant’s performance, capacity, and qualifications to undertake the role. These issues are not in dispute although one of the reasons for termination given was that the normal Public Appointments Process did not take place. As this may be the case, the fact that the complainant has enhanced her skills, is well qualified, and has performed well should negate this as a valid reason to terminate the employment. There was also no reluctance on behalf of the complainant to take steps to fully formalise her employment had she been given an opportunity to do so.

The respondent is mainly relying on (c) above so there needs to be an assessment of the contractual terms along with the work the complainant was actually undertaking. The relevant contractual terms and what was happening in practice are as follows:

Contract

Paragraph 2 covers the period, which has already been discussed above.

Paragraph 3 on probation states ‘Confirmation of your appointment as a permanent member of staff is subject to the successful completion of the probation period’.

Paragraph 4 deals with location and states, ‘Your initial assignment will be to Health and Wellbeing’ and then states, ‘You may be required to work in any service area with the vicinity as the need arises.’

Paragraph 6 deals with duties and states ‘The main duties of your position are set out in the attached job description. In addition to your normal duties, you may be required to undertake other duties appropriate to your position as may be assigned to you, including deputising as appropriate.’

It is appropriate to deal with each of these issues particularly as they all featured either in direct evidence or in submissions. On the fixed term period, separate to the jurisdiction issue, the complainant gave evidence that she received a verbal assurance from the line manager that her fixed term contracts would roll over until she was then made permanent. The complainant said she relied on this assurance and left a previous job. The line manager denies making this statement as she had no authority on HR matters.

The probation terms in paragraph 3 which reference permanency are at odds with the respondent’s assertion that this was only a fixed term contract. There is nothing in dispute between the parties that the complainant fulfilled her role adequately.

In paragraph 4, the location of the post appears to offer flexibility to the respondent with the option of a re-assignment outside of the health and wellbeing section. This issue arose in evidence in that the respondent stated that the work had moved to a new location under new management. The respondent gave evidence that they supported the complainant in applying for new roles. The complainant for her part was keen to apply for new roles although was restricted with location due to family commitments.

Paragraph 6 featured in evidence as the complainant never received a job description as promised and therefore her role seemed to cover several areas including two assignments to Covid related work, from 6th January 2021 to 9th April 2021 and then from 19th April 2021 to June 2021. This was inconsistent with managements assertion that her whole employment was based on Covid related work. These assertions by the respondent were made during the last month of employment at meetings and in correspondence to explain the reason for redundancy. It is striking though that there was no mention of Covid work in the contract itself as being the reason for temporary employment.

In essence, the written contract although being relied upon by the respondent in terms of the fixed term element, contains many beneficial commitments to the complainant. It is not difficult to see how her expectation was that she would be regularised into the role in due course.

As there is a continued demand for health services and the recruitment of staff, it is unusual in this case that the respondent is making the case that the work has dried up and/or has moved to a different location. No evidence was adduced of other health service providers that are reducing services and staff numbers. As outlined, it has been a difficult task to ascertain the reasons for the complainant’s appointment as they were not provided in the contract nor shortly afterwards. It is only towards the end of her employment that a myriad of reasons began to emerge as to why her contract would not be rolled on. The respondent’s approach to this particular employment lacked clarity from the outset. I do accept that the emergence of Covid challenged all staff who responded courageously with all hands-on deck with the details of staff contracts not the main priority. In the complainant’s case, she was at the mercy of the respondent as to how her career would develop given the lack of clarity to her role. Although the respondent gave evidence of assistance in finding an alternative role, there is no formal correspondence of alternative offers which would normally feature when services are being restructured and/or staffing levels reduced.

As there is no cogent reasoning as to why the employment was terminated, I find that the dismissal was unfair.

Redress

I decide that due to the nature of the dismissal that the appropriate remedy in this case is compensation for financial loss. The complainant did not obtain alternative employment until the end of July 2022. I have had regard to the submission from the respondent representative on the complainant’s efforts to mitigate her loss.

 I find that the complainant was unfairly dismissed under the Unfair Dismissals Acts 1977-2015 and award the equivalent of five month’s pay totalling €12,000 to be paid by the respondent.  

CA-00049199-001- I find that the complainant was unfairly dismissed under the Unfair Dismissals Acts 1977-2015 and award the equivalent of five month’s pay totalling €12,000 to be paid by the respondent.

Jurisdiction, Unfair Dismissal