UDD2453

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00036713 (CA-00047861-001).

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 16 November 2022 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 15 November 2023. The following is the Determination of the Court:

DECISION:

This is an appeal by Albert Kelly against the Decision of an Adjudication Officer (No ADJ-000036713, dated 18 October 2022) in a claim of unfair dismissal against his former employer Iarnrod Eireann Irish Rail. Mr Kelly submitted his claim under the Unfair Dismissals Act 1977 – 2015 (the Acts) to the Workplace RelationsCommission on 23 December 2022. The Adjudication Officer held that the Acts did not apply to the dismissal and that Mr Kelly’s complaint was not well founded.

For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Albert Kelly is referred to as “the Complainant” and Iarnrod Eireann Irish Rail is referred to as “the Respondent.”

Position of the Respondent

The Complainant was employed as a Multiskilled Shift Craftworker on a 24-month contract, which commenced on 1 July 2019. The Complainant was provided with 6 weeks’ notice of his contract expiration at a meeting on 17 May 2021 and was informed that his contract would expire on the 30 June 2021. His contract ended on the 30 June 2021.

The Complainant’s contract of employment was for a specified period. It was signed by the employee and the employer, and contained a clause stating that the expiration of the contract would not constitute grounds for an unfair dismissal claim. The Respondent asserted its contractual right to terminate the Complainant’s employment with notice but without fault or providing a reason.

The Complainant’s name was left on the work rota, and he was informed that it was his choice if he wanted to inform colleagues that he was leaving the company. The rota is a rolling roster that is scheduled months in advance. It is standard practice for a person’s name to remain on a rota after their leaving date as their tasks are noted and assigned to another person.

The Complainant reported for work on the 2 July 2021, after his contract had expired. He was advised that he was no longer an employee and could not remain on site. After leaving the premises, the Complainant emailed the HR department about the termination of his contract and in that correspondence, he acknowledged that he was provided with adequate notice of the expiry of his contract. The Respondent wrote to the Complainant on the 2 July confirming that his contract had expired.

The Complainant never entered a second contract with the company. He was not rostered to work on 1 July 2021 and on reporting to site on the 2 July 2021 there was minimal delay in confirming that his contract had expired. Written confirmation of this then issued.

The Complainant’s contract was not renewed as there was no business case to increase the headcount in the location where he worked. His role was not backfilled following the expiration of his contract. A business case to increase headcount in the area was not approved until February 2022, some seven months after the Complainant exited the organisation.

The assertion that the Complainant’s contract was terminated due to reasons other than the expiry of his contract is denied. The Complainant had an excellent work record and had no performance issues. Any feedback provided to him when exiting the organisation was provided informally, with the view to supporting the Complainant in any future job applications that he might wish to pursue.

The Complainant had the option of applying for other roles in the organisation but chose not to. He was not unfairly dismissed but exited the organisation in line with his contract on a no-fault basis.

Position of the Complainant

The Complainant was summarily dismissed without proper notice on 2 July 2021 by way of a letter stating that his employment had ceased on the 1 July 2021. The termination of the Complainant’s employment related to factors other than the expiry of a fixed-term contract.

Om 17 May 2021 the Complainant was informed by Mr Kevin Walsh that his contract would expire on 30 June 2021, because of his interpersonal skills. The Complainant was denied the opportunity to challenge that matter and the Respondent acted outside its own procedures in dismissing the Complainant without due process.

The Complainant was informed by Mr Walsh that he would investigate the purported interpersonal issues. The Complainant sent an email to Mr Walsh on 21 May 2021 requesting a follow up to those issues and stated that he may need to bring the issue to HR. Mr Walsh subsequently met the Complainant outside the canteen and told him that he was not ignoring his email and that he was free to contact HR. The Complainant awaited a response from Mr Walsh, but never received any follow-up in respect of the meeting held on the 17 May 2021.

The Complainant had a reasonable expectation that his employment would continue based on assurances from Mr Walsh that he would investigate the “interpersonal issues” which formed part of the basis of the dismissal. This hope was crystalised when he remained rostered to work for the months of July and August 2021 following the end date of the fixed-term contract, and when he did not receive a formal notification of the non-renewal of his contract, as is the Respondents ordinary practice, prior to the expiry of that contract.

The Complainant’s dismissal was not solely related to the expiry of his contract of employment. He was not given the opportunity to respond to in any meaningful manner to the interpersonal issues raised with him on the meeting of the 17 May 2021. The Complainant was informed on two occasions by Mr Walsh that he was investigating the issue, but no investigation into what the purported interpersonal issue was appears to have ever taken place. There was a complete lack of any procedures applied in respect of the Complainant’s dismissal. Having regard to the lack of any fair procedures and/or the Respondent’s own procedures, the dismissal must be considered as unfair for the purpose of the Act

The Respondent is not entitled to rely on Section 2(2)(b) of the Act, as that provision does not apply in circumstances where the dismissal occurred after the expiration of the fixed-term. The Complainant’s continued employment on 1 July 2021 amounted to a new contract of employment wholly separate to the previous fixed-term contract. His fixed-term contract had expired by 1 July 2021.

Even if it is not accepted that his employment continued past the end of that term on the 30 June 2021, the Respondent is not entitled to rely on Section 2(2)(b) of the Act, as that provision does not apply when the dismissal did not arise solely because of the non-renewal of the fixed term contract.

Witness Testimony

Kevin Walsh - Fleet Manager, Portlaoise Depot

Kevin Walsh met the Complainant on 17 May 2021 to tell him that his contract of employment was coming to an end. The Complainant told him that he’d never been out of work and thanked him for giving him sufficient notice to seek another job. They had a general chat about the Complainant’s development needs. He told the Complainant that some people had mentioned the Complainant’s interpersonal skills but that he did not see it as an issue. The Complainant thanked him for his time.

He subsequently received an email from the Complainant outlining concerns about the reason that the contract was ending and informing him that he intended to raise matters with HR. The email acknowledged that the contract was coming to an end. He understood that the Complainant was approaching HR about that matter and was informing him as a courtesy. He did not reply to the mail.

A week of two later he approached the Complainant outside the canteen and told him that he was not ignoring the email and that he had no issue if he wanted to raise matters with HR. There was no business case to increase headcount numbers and he gave him no assurances in that regard.

On 2 July 2021, he received a call to say that the Complainant was on site. He went across and confirmed to him that his contract had come to an end. After the Complainant left, the headcount remained the same until the following year.

Under cross-examination, Mr Walsh said that he never told the Complainant that his contract was ending because of issues relating to interpersonal skills, or clashes with colleagues about safety standards at the meeting on 17 May. There was no basis to increase headcount numbers. The Complainant in his email of 21 May 2021 acknowledged that his contract was ending. No review is mentioned in that mail. The Complainant didn’t challenge the feedback he gave to him in any way or ask any questions. There was no mention of a HR process or exit interview. He was not aware if the Complainant subsequently raised any matters with HR.

It is not the usual practice to take people off the roster when they are leaving. That happens after the fact. The rota can be set up to two years in advance.

There is no standard process when a person leaves employment. Mr Walsh did not inform the Complainant’s line manager that he was leaving, and he could not say what was communicated to the line manager. The line manager manages workloads on any given day. Work is allocated to whoever is on site on the day.

Mr Walsh acknowledged that a formal notification was issued to the Complainant after the expiry of his fixed-term contract on 2 July 2021.

Sharon O’Rourke – Industrial Relations Manager

Ms O’Rourke told the Court that the first time she was aware of the Complainant was on 2 July 2021 when Kevin Walsh informed her that the Complainant was on site and should not be on duty. She understood from Mr Walsh that he had spoken to the Complainant in May and advised him of the expiry of his contract. She queried with Mr Walsh if had given the Complainant any correspondence about the expiry of the contract and informed Mr Walsh that it was a general courtesy to do so.

Under cross-examination, Ms O’Rourke confirmed that the Complainant’s contract of employment expired on 30 June 2021. She said that the normal practice is for the line manager to issue a termination letter to an employee. It does not necessarily have to happen that way. The manager generally advises HR that a person has left and is to be taken off payroll after the person has left employment. She advised Mr Walsh on the content of the formal notification that issued to the Complainant on 2 July 2021. Payroll was notified that the Complainant had left on 2 July 2021.

Mr Albert Kelly – the Complainant

Mr Kelly commenced employment as a Multiskilled Shift Craftworker on 1 July 2019. On 17 May 2021 he was called to the office and told by Kevin Walsh that his contract of employment was coming to an end. Mr Walsh told him that HR had an issue with his interpersonal skills. He was dismayed as he had never been let go from a job, and there was never an issue with any aspect of his work. He didn’t ask a lot of questions at the meeting, but afterwards the conversation festered in his mind and he sent Mr Walsh an email on 21 May 2021. He couldn’t fathom what the issue was with his interpersonal skills as he had a good relationship with colleagues. He was humiliated and needed an answer. He understood that Mr Walsh was bringing the matter to HR. He had no interactions with HR. He had the highest regard for Mr Walsh and hoped that he would come back to him.

Mr Walsh approached him outside the canteen and acknowledged the email that he had sent to him. Mr Walsh was not happy that the matter had caused the Complainant distress and told him that he had asked around the depot and there were no issues. Mr Walsh told him that there was a process for employees at the end of their contract of employment. It was an amicable conversation and he understood that Mr Walsh would get it sorted.

The Complainant heard nothing further. There was no process. He was on the rota. When he clocked into work on 2 July 2021, he was asked what he was doing there. Mr Walsh informed him that he should not be on site and that there was nothing could be done about it. He bowed his head and walked out the door. He received a letter dated 2 July 2021 by registered post.

He did not believe that there were any interpersonal issues. He was meticulous when completing paperwork and, as a former NCT tester, could be pedantic on some issues.

Under cross-examination, the Complainant confirmed that his one performance review was positive and that no complaints were made about him. He was aware that his contract of employment was a fixed-term contract of 24 months’ duration, and of the clause that said the Unfair Dismissals Act did not apply where the reason for the dismissal of an employee was the expiry of that contract. He acknowledged that his contract of employment expired on 30 June 2021. He said that he did not apply for any internal vacancies as he was not a permanent member of staff.

The Complainant said that it was common practice for contracts of employment to be rolled on. He was aware of colleagues who had waited for months to receive their contract renewals from HR. No colleagues had any issues with him. He was under the illusion that the matter was being investigated by Mr Walsh, who was the most senior member of staff on site. When he sent Mr Walsh the email on 21 May 2021, he thought Mr Walsh would raise matters on his behalf. He trusted Mr Walsh. He accepted that he did not ask Mr Walsh to action anything on his behalf. The Complainant did not engage with HR or raise any issues with them.

The Complainant acknowledged that Mr Walsh informed him that his contract was due to expire but said that he thought the reason that his employment ended was intertwined with the issues raised about his behaviour. He was under the impression that Mr Walsh would investigate the issue. He acknowledged that the email that he sent to Mr Walsh did not convey any sense of shock or dismay.

The applicable law

Section 2(2)(b) provides that the Acts shall not apply in relation to the: -

(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.

Deliberations

The Court must decide whether or not the termination of the Complainant’s employment was based solely on the cessation of his fixed-term contract and therefore falls within the scope of the exclusion provided at Section 2(2)(b) of the Act. To fall within the scope of Section 2(2)(b) of the Act the contract must meet the following four criteria: -

1. a) The contract must be in writing.
2. b) The contract must be signed by or on behalf of the employer.
3. c) The contract must be signed by the employee.
4. d) The contract must provide that the Act shall not apply to a dismissal consisting only of the expiry of the fixed term.

It is accepted that the relevant contract in this case was in writing and signed by both parties in advance of the commencement of the contract. It is also accepted that the contract specified a fixed term of 24 months and contained a provision stating that the Act shall not apply to a dismissal consisting only of the expiry of the fixed-term period of employment. The Complainant’s evidence was that he was aware that his contract of employment was a fixed-term contract of 24 months’ duration. He was aware of the clause in his contract that stated that the protections of the Unfair Dismissals Act did not apply to a dismissal where the reason for the dismissal was the expiry of the contract.

In the circumstances it is for the Complainant to show that his employment was terminated for reasons other than the expiry of the fixed-term specified in the contract of employment.

Counsel for the Complainant confirmed that the Complainant’s dismissal related to interpersonal skills rather than the making of a protected disclosure, as asserted in the written submission lodged with the Court. The Complainant’s case is that he was informed by Mr Walsh that the reason that his contract was ending was because HR had issues with his interpersonal skills. Mr Walsh denied that assertion. His position is that he gave the Complainant some informal feedback after informing him that his contract was due to expire.

In weighing up this conflict in evidence, the Court notes the Respondent’s position that the Complainant had an excellent work record with no performance issue and that, under cross-examination, the Complainant acknowledged that his one performance review was positive.

The Complainant told the Court that he linked the issue raised by Mr Walsh about his interpersonal skills with the termination of his contract, that he understood that Mr Walsh would investigate the matter further, and that arising from that investigation the situation regarding the expiry of his contract might change.

The Complainant came across as sincere and truthful, however, the Court had some difficulty reconciling his evidence with the email he sent on 21 May 2021 which reads as follows:

“Hi Kevin,

Just a quick mail in relation to the meeting we had on Monday about my contract not being renewed, this is fine and accept it as being what is. I very much appreciate the fact that you gave me as much notice as possible, which will allow me get my affairs in order before possibly being on social welfare. I am however finding it difficult to accept the fact that the reason for this to be the case is my lacking of interpersonal skills and the feedback from my many colleagues on the floor seem to suggest otherwise. I must admit it is playing on my mind and distressing me to a degree as I have never had this feedback presented to me by any previous employer. I don’t believe I was ever discourteous to any member of irish rail staff or its customers in the performance of my duties and such is the case that I may contact HR for my own piece of mind as to see where this issue has arisen from. Hopefully I can possibly find the answers I am looking for to put my mind at ease. I am just sending you this mail out of a matter of respect to yourself as I feel you have been as honest and straight talking to me as possible, I am now letting you know my position and feelings out of a matter of courtesy (sic).

Regards

Albert Kelly “

It is clear from that email that: - (i) the Complainant knew that his contract would not be renewed; (ii) there is no mention of a review or any undertaking given by Mr Walsh to the Complainant that he would investigate/pursue matters with HR with a viewing to a renewal/extension of the fixed-term contract; (iii) the Complainant was informing Mr Walsh as a matter of courtesy of the fact that he, the Complainant, may contact HR; and (iv) there is no reference in the email that the reason for the expiry of his fixed-term contract was because of HR concerns about his interpersonal issues. Indeed, the Complainant’s evidence to the Court was that he did not ask Mr Walsh to action anything on his behalf, and that he himself never contacted HR. Having regard to the above, the Court finds, on the balance of probabilities, that the expiry of the term of the contract was the reason for the termination.

The Complainant told the Court that following an encounter with Mr Walsh outside the canteen, he was informed that an exit process applied at the end of an employee’s employment and that he understood that his employment status remained under review. Mr Walsh denies that he provided any assurances during that encounter that the matter remained under review. The Complainant’s email of the 21 May 2021 indicates that that was not the case.

The Court was told that no exit process was implemented in the Complainant’s case and that after the encounter outside the canteen he heard nothing further from Mr Walsh or any other member of management about his employment status. In the absence of a formal or structured exit process, and in circumstances where his name remained on the work rota for July and August 2021, it is somewhat understandable that the Complainant may have been under the apprehension that his contract might be extended. He reported for work on 2 July 2021 and said that he found the situation both embarrassing and stressful when he was asked to leave.

While in the Court’s view the exit process was clearly lacking from a good practice perspective, the only matter for consideration in the within appeal is whether or not the termination of the Complainant’s employment was based solely on the cessation of his fixed-term contract. There is no legal requirement for an employer to give formal written notice of the termination of a fixed-term contract, outside the terms already specified in writing in the contract of employment. It is accepted that the Complainant in this case did not receive any formal written notification of the non-renewal of his contract prior to the expiry of his fixed-term contract, and that such notification issued to him after the fact. However, the Court notes that the Complainant acknowledged by email on 21 May 2021 that he was on notice that his contract of employment was due to expire, and his evidence to the Court was that his contract of employment expired on 30 June 2021.

The Court accepts the Respondent’s position that the decision not to renew the Complainant’s contract of employment was made following a review of resourcing requirements for the location, and that the Complainant’s role was not backfilled, as there was no business case or approval to increase headcount numbers. The Court further notes that approval was secured to increase headcount numbers in February 2022, over 7 months after the Complainant left the organisation. In these circumstances the Court is satisfied that it was never the intention of the Respondent to extend the contract beyond the fixed-term specified in the Complainant’s contract of employment.

As a result, having regard to all the above, the Court finds that the termination of the Complainant’s employment was based solely on the cessation of his fixed-term contract on 30 July 2021.

Counsel for the Complainant referred the Court to case law in support of its position that the Respondent could not rely on the waiver provided at Section 2(2)(b) of the Act. The Court did not find those cases helpful in considering the within complaint as the facts of those appeals were different. In The Board of Management of Malahide Community School v Conaty [2020] 2 IR 394 it was found that the conditions set out at Section 2(2)(b) of the Act were not satisfied to rely on the waiver, in circumstances where the date of commencement of the contract had already passed when it was signed and the date of termination was not easily capable of being ascertained as it envisaged its continuation into another school year.  In the cases of Limerick City & County v Richard Moran UDD182 and A Solicitor v A Public body ADJ 00000864 it was held that the Respondents had issues with the performance of the Appellants throughout the periods of their employment. The Respondent in the within appeal had no performance issue with the Complainant.

The Court does not accept the assertion that the failure to formally notify the Complainant of the termination of his contract gave rise to a second contract of employment that was terminated on 2 July 2021. The Complainant was not scheduled to work on the 1 July 2021. When he attended the workplace on 2 July 2021, he was notified promptly that he should not be there. The subsequent notification sent to the Complainant identified his termination date as 1 July 2021 rather than 30 June 2021. Notwithstanding that error, having regard to all the circumstances, the Court finds that the Complainant has not demonstrated that any other factor - other than the cessation of the fixed-term contract - was a factor in the decision to terminate his contract.

The Complainant’s employment terminated when his fixed-term contract expired by effluxion of time. As the contract met the necessary criteria set out in section 2(2)(b) of the Acts, the protection of the Acts does not apply as the termination of his contract occurred on the expiry of the fixed term as set out in his contract. As the Respondent acted in accordance with section 2(2) (b) of the Act and therefore unfair dismissal cannot be claimed.

Determination

For the reasons set out above, the Court determines that the exclusion set out in the Acts at Section 2(2)(b) does apply. Therefore, the Court determines that the Complainant’s complaint is not well founded. The appeal is rejected.

Decision

The decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
CC	______________________
4 January 2024	Deputy Chairman