Complainant

Respondent

Parties

Shane  McCarthy

Fohntech Group Ireland Ltd

Complainant

Respondent

Representatives

Alexander Homits of  Independent Workers Union

Ms McQuinn, HR Director.

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-00062987-001

23/04/2024

The issue in contention was the alleged Unfair Dismissal of the Complainant, a General Operative, by the Respondent Company, a Labour Supply/ Contracting Organisation active in the Technological and Pharmaceutical Sector.

The employment began on the 1st June 2022 and ended on the 17th April 2024. It was a series of Fixed Term contracts.

The rate of pay was stated to have been €19:00 per hour for a 39-hour week.

The Complainant was represented by Mr Homits of the IWU. Oral testimony was given and supported by a Written Submission.

The Complainant had a serious accident, outside of work, on the 16th February 2024. He submitted all required sick certificates and was declared by his GP as fit to Return to Work on the 17th April 2024. Shortly before the 17th April 2024 he was informed by the Respondent employer that the site where had been employed no longer needed him and that he was being let go.

No procedures were followed, no explanations were offered to his selection for removal from the site, no warnings were given, and no Appel was allowed. There were no discussions of any possible alternative roles in the ambit of the Organisation.

Requests from his Union for detailed explanations /negotiations were effectively ignored.

It was a previous case of Unfair Dismissal and completely at variance with all Procedures such as SI 146 of 2000 -Code of Practice on Grievance and Disciplinary Procedures.

The Respondent was represented by Ms McQuinn, Senior Management of the HR Department. Oral testimony was given supported by a Written Submission. Ms McQuinn presented as a most competent and experienced Manager.

The Complainant had been employed on a Fixed Term contract that was due to expire on the 2nd June 2024. It was clear from his Contract that his employment could be ended at any stage by the serving of one week’s notice. In this instance the end user Site had indicated to the Respondent, during the sick absence period of the Complainant, that their need for the Complainant had ended. The Respondent had not communicated this fact to the Complainant during his sick absence. This was a standard practice when an employee was out sick.

Ms Mc Quinn explained to the Hearing that the Respondent was a large Labour Supply Agency, and it was commonplace to let workers go when they had no Client work for them. The workers remained “on the books” and could easily be reengaged when a suitable contract became available. It was not a viable Company Policy to keep Workers on “Lay Off” during periods of non-availability of work. This point was discussed in cross examination from Mr Homits from the IWU. Mr Homits also raised the lack of transparency in the selection of the Complainant as the worker to be let go.

Ms McQuinn explained that the Client Site, as was common in the Construction Industry, had moved on in the work schedules and the requirements for General Operatives such as the Complainant had reduced. The requirements for Workers were dictated by the Site Managers and they had indicated to the Agency that the Complainant was part of a Group to be let go. It was nothing personal.

The Respondent had examined their Work availability in April 2024 and at that time, no suitable alternative work was available.

There was no suggestion that the ending of the Contract had anything negative regarding the Complaint personally or was a criticism of him. The Work requirements on the site had changed and he was let go by the Client.

3:1      Legal discussion.

3:1 Section 2(2) (b) of the Unfair Dismissals Act,1977 states

(2) 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 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.

It follows therefore that the ending of the Fixed Term on the 2nd June 2024 would have been perfectly legal. The issue than arises as to Dismissal during the Term of the Contract and in this case the clear acceptance by engaged workers of the Termination Clause in the Contract

Clause 24 Termination of Employment

After successful completion of your probationary period, your employment may be terminated by the Company or you in line with statutory requirements as follows/ (Table of statutory notice attached)

This was argued by Ms McQuinn for the Respondent to be well accepted Custom and Practice in the Industry.

3:1:2      Further discussion /Dismissals during the term of the contract.

An ending of employment, at the end of the Fixed Term, is as stated above not legally problematic for an Employer. However, a Termination before the end of the Contract (2nd June 2024) as in this case needs further consideration.

The key question of the case before us is that, even with a waiver for a Fixed Term, are Dismissals “Mid-term” covered by the Unfair Dismissals Act. (provided of course that the 12-month service rule is observed)

It is discussed by eminent Lawyer, Mr Des Ryan, at Para 23.75 to 23.81 Page 533 to 535 in Redmond on Dismissal Law, 2017, 3rd edition, Bloomsbury.

Page 534 at Para 23.76

“A waiver only excludes liability that would otherwise attach to termination upon expiry of the term or cesser of the purpose”

However, in practical terms the Employment Law question of the status of being put on “Lay Off” while remaining an employee is open to interpretation. It would be expected that normal “Rights” continued to apply up to the date of Fixed Term Dismissal.

A question that was not raised in the Arguments was where the eventual liability lay, the Respondent Agency or the End User – as per Section 13 of the Unfair Dismissal Act, 1993.

None the less SI 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures can be referenced in considering the case where “Mid Term” dismissals occur.

It is now appropriate to consider the actual facts of the case and the evidence presented.

3:2        Consideration of the Evidence.

In the case it was uncontested that the Respondent contacted the Complainant a number of days before he was due to resume work (17th April 2024) following his accident. He was told that he was being let go and would be paid one week’s notice as per his contract. Mr Homits for the Union argued that this was completely peremptory and done without any proper consultation or joint consideration as to why the Complainant had been selected. No information was apparently made available by the Respondent employer as to whether other positions might be available if the employment relationship was converted to a period of “Lay Off” as accepted/defined in the Redundancy Payments Act,1967.

The complicating factor was the short time gap (6 weeks) to the natural end of the contract.

On questioning the Respondent Manager stated that a Lay Off situation was rarely used and had not been considered in this case.

All told SI I46 of 2000 Statutory code of Practice on Grievance and Disciplinary procedures (warnings, discussions, appeals etc) did not appear to have been to the forefront of the discussion.

3:3      Summary conclusion.

As set out above the Complaint for Unfair Dismissal, mid-term during a Fixed Term contract has been made out successfully.

It is largely a Procedural issue on the Respondent side – more discussion and engagement with the Complainant, possibly involving his Representatives / Union, would have rectified the issue.

The question of Redress now arises.

Section 7 (1) (c) of the 1977 Act requires a Redress that is “just and equitable having regard to all the circumstances”

The Complainant stated that he had resumed employment on the 1st May 2024 albeit at a slightly higher rate of €19.50 as opposed to the rate of € 19:00 in the Respondent.

The Complainant was out of paid employment (allowing for a 7-day notice pay week) for approximately 8 days.

Redress therefore can be calculated at € 400 (approximately half a week’s pay) for what was basically a technical Unfair Dismissal.

Unfair Dismissal, Fixed term Contract, Mid Term Dismissal.