Complainant

Respondent

Parties

Wayne  Timmons

Clare County Council

Representatives

 SIPTU Workers Rights Centre

 LGMA

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-00052854-001

16/09/2022

The Complainant was employed on a seasonal summer basis for over ten years as a

Senior Temporary Life Guard. When he applied for a seasonal contract in 2022 his application was not successful and he maintained that this refusal to rehire was an unfair dismissal.

The Complainant has been employed by the Respondent as a Lifeguard since in or about June, 2009. The Complainant’s last assignment began on 5/6/2021 as a Temporary Senior Beach Lifeguard through the provision of Fixed Term Contract, the 13th such contract provided to the Complainant. The Complainant in the course of his employment with the Respondent has performed more than 1000 rescues and was for the last 9 years of his employment the Senior Beach Lifeguard, at Lahinch Beach.

The Complainant was paid €16.07 per hour with an average weekly income of €556.65

(gross) €553.80 (net.

The Complainant was seasonally employed annually until March 2022, when the Complainant was informed that the Respondent would not be proceeding with his application for the coming year. The basis for the notification was that the Respondent alleged that they became aware that on the 12th September, 2021, when the Complainant was on sick leave, that he was in attendance at a Wedding. At the time of the sick leave the Complainant was in the employ of the Respondent on foot of the Contract dated the 9th June, 2021.

The Complainant was not provided with the allegation at the relevant time (September 2021), was not afforded an opportunity to respond to the allegation and was not afforded an opportunity to have a fair and impartial examination of the issues, contrary to due process and fair procedures, but more noticeably contrary to the Disciplinary policy and procedure of the Respondent and specifically Section 7 of the policy.

It is also of note that Section 16 of the Contract of the Complainant sets out “Clare County Council and the main negotiating unions have agreed to a procedure for dealing with grievance and disciplinary matters which will apply to your employment”. Despite this the Respondent proceeded outside of the agreed processes to the detriment of the Complainant herein. 

In the notification to the Complainant that the Respondent would not be proceeding with the application of the Complainant for the role of senior beach lifeguard for the 2022 season, the Respondent sought to rely on the fact that there was a final written warning on file. That correspondence was dated the 29th July, 2021 however the sanction had been imposed consequent to the Disciplinary Hearing on the 2nd September, 2020. 

That sanction had arisen as a result of an Investigation following an allegation in the 2020 Season the matter was referred to the WRC for adjudication in August 2021 and was therefore under appeal to the WRC in March 2022. 

It is of note that the Complainant had an unblemished record until the allegations, which gave rise to the Disciplinary process in 2020. The Complainant was of the firm belief that handling of the allegations in 2020 was as a direct result of his complaint to the Health and Safety Authority and his complaint to the Workplace Relations Commission in that year, which resulted in a contravention notification to the Respondent.

The Complainant was also of the belief that the decision taken not to proceed with the application for the role in the 2022 season was also as a result of a Protected Disclosure which the Complainant had made to the Minister for Rural And Community Development in January, 2022. This disclosure had resulted in an investigation commencing at the material time and running for 18 months, with the Report recently issuing in the matter.  The matter was referred to the Workplace Relations Commission on the 16th September, 2022. 

For the 12 years prior to the notification to the Complainant that the Respondent would not proceed with the application of the Complainant for the 2022 Season, the Respondent had developed the Practice of bringing the Complainant back annually in March for Pool Trials, leading to resumption of his role in June of each Season. The Representative submitted that the relationship between the Complainant and the Respondent morphed into an employment relationship with periods of lay-off in between.

Under the First Schedule of the Minimum Notice and Terms of Employment Act 1973 the service of an employee is deemed continuous unless the employer dismisses the employee or the employee resigns.  The First Schedule of the Minimum Notice and Terms of Employment Act 1973 further provides that a lay-off is not a dismissal. 

The EAT in the Case of John O’Callaghan & Cogans Garage Ltd. was satisfied that Complainant’s employment was continuous in similar circumstances to the within case. We submit that in the circumstances that the Complainant has one year’s continuous service such as to entitle him to maintain a claim under the Unfair Dismissals Acts 1977 to 2007. 

If the Respondent maintains that there was in excess of 26 weeks break in each period we would refer the Adjudication officer to the case of An Post v McNeil wherein the Court determined that absence on lay off in excess of 26 weeks does not break continuity of service. The Representative also referred to the case of A Tour Coach Driver and A Coach Company.

Further the dismissal in this case does not arise from the termination of a fixed term contract but from the notification by the Respondent that they would not proceed with the application of the Complainant in the usual course for the 2022 season.

The notification to the Complainant was made on the 16th March, 2022, however the Contract of the Complainant herein specifically provides that the Respondent undertakes to give one months notice or pay in lieu. 

In determining the date of the dismissal recourse must be made to the following in accordance with the Minimum Notice and Terms of Employment Acts 1973-2001:

“If the employee is dismissed for gross misconduct and no notice is given the date will be the date of dismissal; If notice is given, the date of the dismissal will be date that the notice runs out; If a contract provides for a notice period, it will be in breach of that contract to pay in lieu of notice unless the employer reserves the right to do so. If there is a payment in lieu of notice clause and the employee accepts same, the date of dismissal will be the date on which the termination takes effect”.

In this case the contract is clear and as there was no payment in lieu and it was not clearly set out that the matter was regarded as Gross Misconduct, we submit that the notice period extends the date of dismissal to the 16th April, 2022, with the referral being well within the 6 month statutory time limit. 

Section 7(a) of the 1977 Act provides that the Adjudication Officer may, in determining whether a dismissal was an unfair dismissal, have regard to the reasonableness or otherwise of the conduct of the employer in relation to the dismissal.  The Labour Court in Pottle Pig Farm & Panasov held that—  “a failure to properly investigate allegations ofmisconduct … will take the decision to dismiss outside the range of reasonable responses thus rendering the dismissal unfair.” The core of the Complainant’s arguments under the 1977 Act is that the Respondent, without any recourse to an Investigation, contrary to the law and their own procedure, dismissed the Complainant. The conclusion arrived at by the Respondent with regard to the Complainants use of the sick leave scheme was arrived at in the absence of putting the allegation to the Complainant and as such was not reached in a proper manner. 

Further the time of the decision, the final written warning was under appeal.   

Given that it is not the role of the Adjudication Officer to re-investigate the matter or to substitute his or her opinion for that of the Respondent, The Complainant essential argument before him or her is that, for the reasons stated above, the decision to dismiss him fell outside ‘the range of reasonable responses of a reasonable employer’ (Bank of Ireland v Reilly)

The Complainant has acted to mitigate his loss. The Complainant asked the Adjudication Officer to note that the dismissal renders him excluded for employment in this specialised field due to the limited nature of locations available, all within the power and control of the Respondent. The Complainant is now employed with the Inland Fisheries Ireland, having commenced on the 17th April, 2023.  The Complainant sought redress in the form of compensation, as he has secured employment in an alternative role. 

Complaint CA-00052854-001 under the Unfair Dismissals act states:

“There was a final written warning on file, which was under appeal to the WRC, and an allegation was made against me which I was not allowed an opportunity to address or defend. It was confirmed that the Council would not be proceeding with my application for a post which I had held for 15 years. I reserve my position with regard to raising further matters when the matter comes on for hearing.”

The Unfair Dismissal Act 1997 & 1993 “dismissal”, in relation to an employee, means— (a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or 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;

The complaint as set out does not meet the definition of dismissal as provided under the Act in that the Complainant says that his dismissal constituted the Respondent not proceeding with his application for the post of lifeguard.

This complaint was submitted to the WRC on 16th September 2022. The cognisable period of the complaint is the six-month period immediately prior to the referral of the complaint to the WRC i.e.. from 16th March 2022 - 16th September 2022.

Section 41(6) of the Workplace Relations Act 2015 provides: “(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 Complainant’s complaint as set out in his WRC complaint states that he was dismissed on 16th March 2022.  Therefore, this complaint is out of time as recognised by the

WRC in their correspondence dated 16th November 2022. The Respondent made the case that the complaint form as submitted by the Complainant is incorrect as it stated that a dismissal occurred on 16th March 2022. They submitted that no dismissal took place on that date. The Complainant’s contract of employment with the Respondent ceased on 12th September 2021. The Respondent submitted that the use of the date of the 16th of March which is exactly six months from the date of submission of the complaint is a deliberate and misleading attempt by the Complainant to bring his complaint within the statutory timelines 

The Complainant’s contract as a temporary Senior Beach Lifeguard was for a fixed term i.e.

the period 5th June 2021 to 12th September 2021. This contract concluded at its cessation date. The Respondent submitted that no liability arises under the Act relying on section 8 of the Unfair Dismissals Act 1977 where the Unfair Dismissals Act section 2 Exclusions states:

2 (2) This Act shall not apply in relation to – (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.

Section 2(2)(b) of the Unfair Dismissals Act was considered by the Labour Court in the case of Malahide Community School v Dawn-Marie Conaty UDD1837. The Court set out the criteria for the application of Section 2(2)(b):

The contract must be in writing; 

The contract must be signed by or on behalf of the employer;

The contract must be signed by the employee; 

The contract must provide that the Act shall not apply to a dismissal consisting only of the expiry of the fixed-term or the cesser of the specified purpose.

The Complainant’s contract of employment complied with criteria outlined above. 

The Complainant’s contract of employment is in writing, is signed by both parties and states at section 5 of that contract: “This is a fixed term contract of employment and therefore the provisions of the Unfair Dismissals Acts 1977-2015 will not apply to the termination of this contract where such termination is by reason only of the expiry of this fixed term.” 

The Respondents position was that they did not have any case to answer under the Unfair Dismissals Act.

The Complainant was the subject of a Final Written Warning which was issued on the 29th of July 2021. The Complainant had the right to appeal this Warning within 10 days under Section 13.1 and Section 13.2 of the Respondents Disciplinary Policy. The Complainant did not appeal this Warning internally. The Complainant appealed the Final Written Warning to the WRC and a Recommendation issued on same dated October 14th 2022 which did not recommend the overturning of the Final Written Warning. This Recommendation was issued by a different Adjudicator.

The Complainant was not dismissed by the Respondent, he was just not re-employed by notification in March 2022 and the stated basis for the non-reemployment was that he had a Final Written Warning on file and the events of September 12th 2021. The Complainant did not appeal this decision at the time but a Representative for the Complainant did request, on March 24th 2022, that the Respondent “reconsider” its position.

On the 8th of September 2022 a WRC decision, again by a different Adjudicator, ruled on the  Complainants contractual status and decided that the Complainant was not on a contract of indefinite duration. This decision was not under appeal by the Complainant. The Adjudicator requested sight of this Recommendation prior to the issue of my Decision. Of significance in the Recommendation is the Employees contention that his contract expired on September 13th 2020 and his employment was seasonal and that any disciplinary action ceased on expiry of his contract. This is contrary to the case put forward in this complaint where he alleges that he has been in continuous employment for a number of years and the Unfair Dismissals Act should apply to him.  The Complainants signed contract of employment states at section 5 of that contract: “This is a fixed term contract of employment and therefore the provisions of the Unfair Dismissals Acts 1977-2015 will not apply to the termination of this contract where such termination is by reason only of the expiry of this fixed term.”. I find that the Complainant was not an employee at the time of the decision to not rehire and he was an employee on a fixed term contracts in his previous employments with the Respondent.

I have considered the submissions in this complaint and determined that the Complainants employment ended on September 12th 2021 and his complaint was submitted to the WRC on September 19th 2022 and therefore is out of time under Section41(6) of the Workplace Relations Act 2015. Section 41(6) of the Workplace Relations Act 2015 provides:

“(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.”

As there was no notice of termination of employment in advance of September 13th 2021 when the contract expired there is no entitlement to notice pay.

I find that the fixed term employment ceased on September 13th 2021 and the complaint was submitted on September 19th 2022 and therefore the complaint is statute barred under Section 41(6) of the Workplace Relations Act 2015

I also find that the Complainant is precluded the applicability of the Unfair Dismissals Act 1977 to him by Section 5 of his contract of employment.

 I deem I have no jurisdiction to deal with the substance of his complaint.

I find that the Complainant was not unfairly dismissed.

Unfair Dismissal