Complainant

Respondent

Parties

Eric  English

Store-All Logistics Ltd

Representatives

Self-represented

Eileen Walsh BL, instructed by Ormonde Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00063764-001

28/05/2024

The Complainant commenced employment on 7 June 2022 on a one-year fixed term contract. This contract was renewed with an end date of 5 May 2024. The Complainant worked as a forklift operator and was paid €670.15 gross per week. On 29 April 2024, the Complainant was advised his fixed-term contract would expire on 5 May 2024. The Complainant had an expectation that his contract would be renewed. He contends that his dismissal on 5 May 2024 was unfair as it was for reasons other than the natural expiry of the contract and he seeks reinstatement or compensation. The Respondent submits that the contract expired on 5 May 2024 and that there was no further work for the Complainant at this time.

Oral Testimony of the Complainant (under oath)

On 15 April 2024 Mr Stockwell gave the Complainant a verbal warning regarding an absence and for not pulling down a face covering when clocking in. Mr Stockwell gave no indication on this date that the Complainant’s fixed-term contract would not be renewed. On 19 April 2024 Mr Donoghue told the Complainant he needed to obtain DAA clearance as there was “an issue across the road” (a reference to the main office). The Complainant explained to Mr Donoghue that he had already completed the necessary paperwork several times and that the Respondent had mislaid it. The Complainant said he was aware that such clearance was necessary and felt that the repeated request for same by Mr Donoghue meant that the Respondent was invested in his continued employment.

Some weeks previously the Complainant was told by a third party that there were concerns within the company that the Complainant had participated in a protest while wearing company branded clothing. When Mr Donoghue informed the Complainant that there was “an issue across the road” in relation to him, he was concerned that this related to what that third party had relayed to him some weeks earlier. He sought clarification from Mr Stockwell. Mr Stockwell came back to the Complainant on 25 April 2024 to assure him that the Respondent had no concerns in that regard and that he should consider the matter closed. Mr Stockwell added that there was another issue however that needed to be addressed and that he would invite the Complainant to a meeting to discuss this. The Complainant was happy that there would be a meeting so that any concerns could be aired and addressed. When the Complainant attended for work on 29 April 2024 he was invited to a meeting. Mr Stockwell and Mr Murphy were in attendance and the Complainant was advised that his fixed term contract would expire on 5 May 2024. He was paid in lieu of notice and asked there and then to return his access card and to leave the premises. The Complainant was denied an opportunity to say goodbye to his colleagues, his lunch was in the fridge, and he was left without a lift home.

On 28 May 2024, the Complainant saw an advert for a warehouse position at another of the Respondent’s premises. He applied and was unsuccessful in securing the role. The Complainant actively sought employment since his dismissal and only secured part-time employment the week prior to this hearing. He earned €240 for that week.

In cross-examination the Complainant accepted that he was engaged under a fixed term contract and that he was on advance notice of it’s end date. In response to the question of whether the Complainant accepted the reason for the expiry of the contract and its non-renewal being a 25% reduction in customer demand, the Complainant replied “yes, that what they said”. The Complainant accepted that he was not employed on a rolling contract. The Complainant accepted he did not raise a grievance in relation to the non-renewal of his fixed term contract. He also accepted that at no time had he been advised his contract would be renewed. The Complainant accepted that Mr Stockwell said there were no concerns in relation to the Complainant’s alleged participation in a protest whilst wearing company clothing and that Mr Stockwell had assured him the matter was closed. The Complainant accepted that he was given an opportunity to say goodbye to his colleagues before leaving. The Complainant acknowledged he has an obligation to mitigate his loss. It was put to the Complainant that his online activity and commentary (samples of which were opened to the hearing) may be impacting on his ability to secure alternative employment. The Complainant responded that he did not believe this to be the case and that he had a constitutional right to peacefully protest.

Closing Remarks

The Complainant outlined that he was aware he was employed under a fixed-term contract of employment, and he was aware that there was an end date provided for within that contract. However, he had an expectation that this fixed term contract would be renewed as his first fixed-term contract had been renewed; he was excelling in the role; Mr Donoghue had asked him to complete the DAA forms; and he was not advised at any stage that his contract would not be renewed. The Complainant submitted that Mr Donoghue must have been aware at the time that his contract was going to be renewed if he asked for the DAA forms to be completed. The Complainant submitted that he believes his contract would have been renewed had it not been for the complaint received by the Respondent in relation to him. The Complainant stated he was aware there had been a reduction in customer demand in the warehouse he was working in, but he could have been transferred to another warehouse as had been the case previously and he was prepared to travel to another location fifty minutes away if necessary. Other persons engaged on fixed-term contracts at the time his contract was renewed, had their contracts renewed.

Counsel for the Respondent opened the Respondent’s case by outlining that the matter before the hearing was a straightforward one. The Complainant’s fixed term contract was not renewed due to a decline in customer demand. The Complainant’s political views had nothing whatever to do with the non-renewal of the Complainant’s contract. The Respondent was aware at all times of the Complainant’s political views. Two concerns were raised in relation to the Complainant’s political views neither of which led to disciplinary action.

Oral Testimony of Mr Stockwell (under oath)

The Complainant was employed by the Respondent on two successive fixed term contracts from 7 June 2022 until the end of the second fixed term contract on 5 May 2024. The first fixed term contract was renewed because there was sufficient work available to require such a renewal. At a meeting on 29 April 2024 the Complainant was reminded that his second fixed term contract would expire the following week and that the contract would not be renewed as one of the Respondent’s main customers had reduced their storage needs by 25%. The Complainant queried if his contract was not being renewed due to a customer complaint or because of the recording of the video on 17 April 2024. Mr Stockwell confirmed to the Complainant that the non-renewal of his contract had nothing to do with these matters. The Complainant was not required to work out his notice and was paid in lieu thereof. There were no concerns regarding the standard of the Complainant’s work. Two issues arose regarding his attendance and time keeping but the Complainant had made improvements in this regard in 2024.

DAA clearance in the role is essential as the Respondent works for global pharma companies and security levels at the airport require such clearance. The Complainant may have completed the relevant documentation however if these go out of date they are shredded and the Complainant was requested to complete same again.

Mr Stockwell outlined that the Respondent received a call from a customer advising the Respondent to look into the background of the Complainant. Mr Stockwell searched the internet as had been suggested by the customer. Mr Stockwell found nothing of concern and no evidence of the Complainant attending a protest in company branded clothing as had been alleged by the customer. Mr Stockwell advised the customer accordingly and the matter was closed. An email from Mr Stockwell to the Complainant dated 25 April 2024 was opened to the hearing. In this email, Mr Stockwell confirmed to the Complainant that there was no written customer complaints or any customer allegations open in relation to him. Mr Stockwell noted in the email that there was a separate work-related concern which he needed to address with the Complainant and a meeting would be arranged to discuss this issue. This separate concern had been brought to the attention of Mr Stockwell by Mr Donoghue, Warehouse Supervisor. It concerned a video clip taken in Mr Donoghue’s office by the Complainant in relation to an upcoming election campaign. The Respondent logo was visible in the clip. On 26 April 2024, the Complainant was advised that HR wished to meet him the following Monday and the issue would be addressed then. At this meeting, the Complainant was advised that his contract was not being renewed and he was paid in lieu of notice. Because of this it was unnecessary to address the issue of the video at the meeting as a decision had been made by the head of operations not to renew several contracts including the Complainant’s contract. The Complainant was not permitted to re-enter the warehouse to say goodbye to his colleagues as Mr Stockwell had taken the Complainant’s security and access badge as per security policy. Mr Stockwell confirmed to the hearing that it is customary practice within the Respondent business to pay in lieu of notice rather than working out the notice period.

In cross-examination Mr Stockwell responded that the customer complaint had been received several weeks before the expiry of the Complainant’s fixed-term contract. Mr Stockwell explained that he did not provide a written copy of the customer complaint to the Complainant because preliminary inquiries conducted by him had generated no concerns to require such a step. Mr Stockwell confirmed that HR were advised of the complaint when received. Mr Stockwell outlined that the reason the Complainant was not afforded an opportunity to say goodbye to his colleagues was for security purposes only.

Oral Testimony of Mr Donoghue (under oath)

Mr Donoghue outlined his position and that he was supervisor of three warehouses. He was the Complainant’s supervisor. Mr Donoghue said he asked the Complainant to complete the DAA form on 19 April 2024. The phrase “an issue across the road” was not how he would have described a HR concern. Mr Donoghue confirmed he was aware of the Complainant’s political views and outlined that they were not a problem in the warehouse. Mr Donoghue said he was not an employee of the Respondent at the time the first fixed term contract was renewed. Mr Donoghue said that it is part of his function to recommend the renewal of fixed-term contracts, but he does not recall completing a renewal form for the Complainant. Mr Donoghue gathered the Complainant’s colleagues and brought them outside to say goodbye to the Complainant as the Complainant was not permitted on-site without a security badge.

In cross-examination Mr Donoghue outlined that the conversation he had with the Complainant on 19 April 2024 focused on an absence; lateness, completing the DAA forms and his dissatisfaction with the Complainant for recording a video in his office. The Complainant had no permission to be in Mr Donoghue’s office and a vehicle with the company logo was visible in the video. Mr Donoghue confirmed that he had no recollection of saying there was “an issue across the road”. Mr Donoghue agreed that, apart from timekeeping and attendance, the Complainant’s performance was good, and that he would have said the foregoing had he been asked to complete a renewal form. Mr Donoghue confirmed that he did not alert the Complainant to any risk that his contract may not be renewed because of time keeping and attendance issues. Mr Donoghue confirmed that a warehouse position arose in Dungarvan on 28 May 2024 but this was in a food warehouse and was not under the supervision of Mr Donoghue.

Oral testimony of Mr Murphy (under oath)

Mr Murphy is the pharma warehousing manager. He spoke with the Complainant to advise him that there would be a meeting with HR the following Monday to which the Complainant replied “OK”. Mr Murphy outlined that he was not aware of the Complainant working in any other warehouse other than BV1.

In cross-examination Mr Murphy agreed that the Complainant was willing to complete the DAA forms and that the Complainant had told him that he had previously completed same and they had been lost by the Respondent. Mr Murphy confirmed that he never had a difficulty with the Complainant’s work performance. He also confirmed he was aware that staff were car-pooling.

Oral Testimony of Ms Collingwood (under oath)

Ms Collingwood is employed as head of operations. It is she who decides what, if any, fixed term contracts are renewed. One of the Respondent’s pharma customers was going through a restructuring programme which resulted in a 25% reduction in the need for the services of the Respondent in the warehouse where the Complainant worked. Such was the impact of the reduction in demand for storage in that warehouse, that part of the warehouse was transitioned from a pharma to a food storage facility. The Complainant’s contract was due to expire on 5 May 2024. Ms Collingwood decided not to renew his contract because of the reduced demand in the warehouse in which he was engaged. Ms Collingwood outlined that she was unaware at the time that there was any issue of concern regarding the Complainant’s use of Mr Donoghue’s office to create a video for his political candidacy in the local elections. The Complainant’s political interests were of no interest to Ms Collingwood and had no impact on the decision not to offer the Complainant a third contract.

Ms Collingwood outlined that an application was received from the Complainant in relation to a position advertised on 28 May 2024 in another warehouse some distance away from where he had been employed. This was a food warehouse and the Complainant did not have the specific competencies she was looking for in relation to this vacancy.

In cross-examination the Complainant named Mr S, also hired on a fixed contract, and asked why his contract was renewed. Ms Collingwood responded that this employee was only one year into a two-year fixed-term contract at that time. The Complainant also questioned why an employee on probation was not let go before him. Ms Collingwood was asked if it was not normal practice to meet with an employee in relation to renewing their contract. Ms Collingwood responded “no”, and that the practice was for renewals to be considered based on a form. The manager of the employee enters comments regarding the performance, attendance and time keeping of the contract employee. In relation to the Complainant, Ms Collingwood made the decision not to renew his contract solely on the ground of decreased volume in the warehouse within which he was working. Ms Collingwood was asked if she was aware of any complaints in relation to the Complainant, to which she responded “no”. Ms Collingwood confirmed that she was unaware of any other contracts being terminated at the time of the expiry of the Complainant’s contract.

Closing Remarks

Counsel for the Respondent summarised the Respondents position as follows: the Complainant was engaged on a fixed-term contract which included a valid exclusionary clause for the purposes of the Unfair Dismissals Acts; the Respondent was under no obligation to renew the Complainant’s fixed term contract; the only party that made an issue of the customer complaint and the making of the video was the Complainant himself; there was no staff hired at the location at which the Complainant was employed after the Complainant’s dismissal; the Complainant failed to mitigate his loss; and the Respondent cannot take responsibility for the Complainant not being able to secure employment given the impact of his online profile on prospective employers. The Respondent relied on the following case law: Nerney v Thomas Crosbie Holdings Limited [2013] 24 E.L.R 238; Malahide Community School v Dawn-Marie Conaty UDD1752 (UD/17/78); and Coad v Eurobase (UD1138/2013).

Relevant Law

Section 1 of the Unfair Dismissals Acts, 1977 - 2015 (“the Acts”) defines dismissal, which includes at (c): “where a contract of employment for a fixed term expires without its being renewed under the same contract . . . .”  

Section 2(2)(b) of the Acts makes it possible to limit the application of the Acts to a dismissal on the expiry of a fixed term contract without the contract being renewed. Section 2(2)(b) provides:

“Subject to subsection 2A, this Act shall not apply in relation to – (b) dismissal where the employment was under a contract of employment for a fixed term . . . and the dismissal consisted only of the expiry of the term without its being renewed under the said contract . . . 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 . . . ” (emphasis added).

Section 2(2)(b) must be strictly construed (see The Board of Management of Malahide Community School v Dawn Marie Conaty [2019] IEHC 486 and O'Mahony v The Provost Fellows and Scholars of the College of the Most Holy Trinity and Undivided Trinity UD 613/95).  The Acts do not apply to a dismissal occurring before or after the expiry of the contract or where termination of employment was related to factors other than the expiry of the term of that contract.  In Limerick City & County Council v Richard Moran UD/17/46, the Labour Court in finding that the complainant was unfairly dismissed, concluded that issues raised in the complainant’s performance review were the determining factor in the non-renewal of the employment contract. On the basis that the expiry of the fixed term contract was not the only reason for the complainant’s dismissal, the Labour Court concluded that the exclusion set out in s 2(2)(b) of the Unfair Dismissals Acts did not apply.

Section 2(2)(b) of the Acts is subject to a proviso at subsection 2A. Subsection 2A can impact on whether an employer can rely on the waiver provided for under s 2(2)(b). Subsection 2(A) provides:

“Where, following dismissal consisting only of the expiry of the term of a contract of employment of a kind mentioned in subsection (2) (‘the prior contract’) without the term being renewed under the contract or the cesser of the purpose of the contract—

(a) the employee concerned is re-employed by the employer concerned within 3 months of the dismissal under a contract of employment of that kind made between the employer and the employee (‘the subsequent contract’) and the nature of the employment is the same as or similar to that of the employment under the prior contract,

(b) the employee is dismissed from the employment,

(c) the dismissal consisted only of the expiry of the term of the subsequent contract without the term being renewed under the contract or the cesser of the purpose of the contract, and

(d) in the opinion of the adjudication officer . . . entry by the employer into the subsequent contract was wholly or partly for, or was connected with, the purpose of the avoidance of liability under this Act,

then—

(i) this Act shall, subject to its other provisions, apply to the dismissal, and

(ii) the term of the prior contract and of any antecedent contracts shall be added to that of the subsequent contract for the purpose of the ascertainment under this Act of the period of service of the employee with the employer and the period so ascertained shall be deemed for those purposes to be one of continuous service”. (Emphasis added).

Findings

In this case term expiry and non-renewal of a fixed term contract exists. I note the contract of employment was in writing and was for a specified fixed-term. It was signed on behalf of the employer and by the Complainant and it included a waiver which complied with the requirements of s 2(2)(b) of the Acts. Subsection 2A of the Acts is an anti-abuse provision which provides that if an Adjudication Officer forms the opinion that the entry into a second or subsequent contract was for the purpose of avoiding liability under the Acts, the Acts will apply to the dismissal and the employer cannot rely on a waiver in the final fixed term contract issued. However, ss 2(A) applies to a particular type of scenario: where the employer has dismissed the employee on the expiry of a prior contract and not renewed the fixed-term contract and then subsequently re-employs the employee within 3 months of the prior contract. In this case, there was no dismissal on the expiry of the prior contract, and the Complainant’s contract was renewed.

The Respondent submitted that the provisions of the Acts do not apply to the dismissal of the Complainant.  It was the Respondent’s case that the Complainant’s services were no longer required due to a 25% decrease in demand in the warehouse the Complainant was assigned to. According to the Respondent, this was the sole reason for bringing the Complainant’s employment to an end and, as the dismissal consisted only of the expiry of the fixed-term contract, the Respondent is entitled to rely on the waiver at s 2(2)(b) of the Acts. The Complainant acknowledged that he was on notice of the legal effect of the fixed-term contract. However, he had formed an expectation that his fixed-term contract would be renewed. He contends that his dismissal was related to factors other than the expiry of the term of that contract. 

The question for me therefore in this case is whether the Respondent is entitled to rely on the exclusion clause at s 2(2)(b) of the Acts. I am mindful that s 2(2)(b) was enacted to provide a means for no liability regarding the use of fixed-term contracts. However, the Respondent may not be able to rely on s 2(2)(b) if the termination was due to factors other than the expiry of the term.

I find the Complainant’s dismissal was not due to factors other than the expiry of the contract and therefore the Acts do not apply to the Complainant’s dismissal. I find on balance that it was more probable that the Complainant was dismissed because his temporary contract had ended and there was no further need for the Complainant due to a significant decline in customer demand within the warehouse in which he worked. I accept that the Complainant was not replaced at the warehouse in which he worked. In relation to the two other employees whom the Complainant claimed had their fixed-term contracts renewed, I accept the evidence of Ms Collingwood that one of these employees was only one year into a two-year fixed-term contract; and the other (notwithstanding he was on probation) was also mid-contract. I accept that it was Ms Collingwood who decided if the Complainant’s contract was to be renewed, and I accept that she was unaware of the customer complaint concerning the Complainant or of his recording of a video in Mr Donoghue’s office. Although more relevant to the first fixed-term contract, it was common case that in the first year of the Complainant’s employment there were issues with his time keeping and attendance; his political views were known to the Respondent; and he did not have DAA clearance (irrespective of who was at fault for this), and yet he was not dismissed at the end of that fixed-term because there was plenty of work. The Complainant had an expectation that the contract would be renewed, however, this expectation was of the Complainant’s making and was not knowingly created by Respondent. In any event, the Respondent was not under an obligation to renew the Complainant’s fixed-term contract.

I conclude the Respondent is entitled to rely on the exclusion clause within the fixed term contract of employment and accordingly, the Unfair Dismissal Acts, 1977 to 2015 do not apply to the Complainant’s dismissal.

I decide the Unfair Dismissal Acts, 1977 to 2015 do not apply to the Complainant’s dismissal. This complaint of unfair dismissal is not well-founded.

Dismissal. Non-renewal of a fixed-term contract.