Complainant

Respondent

Parties

Mary  Smith

Longford Community Resources Company Limited By Guarantee Edi Centre Longford (Cro 234249)

Representatives

Áine Feeney SIPTU

Pat Collier Collier Broderick

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-00063083-001

25/04/2024

Mary Smith – affirmation.

The Complainant worked as a CE supervisor for three years in Ronanstown prior to her move to Cavan. She was commuting to Cavan every day and during lockdown she decided to try and find a job closer to home. She saw the role advertised and she was interested in it. She also found the role description to be very interesting.

CE supervisor contracts do have the words “fixed term” on them. She was surprised to see the word “permanent” in the advertisement as all the roles are funding dependant. She didn’t discuss the matter with Ms. Murphy because she knew it was incorrect. When she saw the fix term contract, she wasn’t surprised. She also didn’t anticipate any issues with the funding from the DSP. There is never an issue with funding for CE roles.  At no time was a secondment mentioned to her. She would not have applied for such a short-term position with no chance of extension had she known.  Ms. Murphy told her that she was taking up the role as Enterprise Supervisor.  She did not tell her she was on secondment. She assumed this was promotion and was not funding dependent.

In early 2023 the Complainant was asked to take on extra duties. She did so happily. However, it all became too much for her after a period of time. She expressed concerns in April 2023. Then, when Ms. Murphy was on leave she had to deal with someone who had complex personal issues. She felt that it was a dangerous situation. She called a meeting with the CDO. She went on sick leave. When she came back, she told Ms Murphy that she would revert back to the CE supervisor role with no additional duties.  She was then asked to see a HR manager. She explained her health was suffering due to the additional duties she was asked to take on. He told her to continue with her duties, all of them, including the additional duties or her role would be at risk. She then received a phone call from Mr. Kelleher about a meeting. He told her that funding had not been made available for Ms. Murphy’s role and that she would be reverting back to Ms Smith’s current role as CE Supervisor. That was the first time she was made aware that she was back filling for Ms. Murphy. She was told that if there was a suitable role she would be given that role.

The Complainant’s contract terminated on the 31st December 2023. She started her new role five weeks later in February 2024. She received € 1020.80. Her loss is €2,957.60.

The entire situation “flattened” her. She ended up seeking medical intervention to help her with her anxiety. It was all so avoidable. She was so disappointed because she felt she had done a super job and she was thrown aside when Ms Murphy’s leave ended. That had a knock-on effect on her confidence.  

Mary Smith – affirmation.

Ms. Smith is a Board member of the Centre and has been for the last eight years. Prior to that she was a supervisor in the Centre for eighteen years. At the time of the Complainant’s appointment, she was the Chairperson of the board. She finished up as Chairperson last year, 2023.

Funding for EDI: The Respondent applied “just transition funding” from the Department of the Environment for an Enterprise Manager in the Centre. We also applied for CE Supervisor funding to backfill the role while the normal occupant of that role was on leave (unpaid).  That funding was given by the Department of Social protection. We received the funding from in 2021 for the Department of Environment for the Enterprise Manager role.  The Complainant was a senior supervisor at the time. The Respondent applied to the Department to give her a two leave of absence from her role so that she could take up the role of CE supervisor.  The funding was only for two years. Ms Smith advertised the new position and interviewed numerous applicants. The Complainant interviewed. She was successful.  She was very impressive.  At the interview the fixed term contract was discussed. It was a two years fixed term contract up to December 2023. She never raised any questions around the duration of the contract. She signed the contract. She was notified verbally and in writing by Mr. Kelleher that her contract was coming to an end October 2023.  She was informed that her contract was not going to be renewed.

The funding for the CE role remains in place to date.  The Complainant states that the conditions in the advertisement never stated her role were contingent on Ms. Murphy receiving funding for her role from the Department of the Environment. That is denied by the Respondent.  The Respondent states that all interviewees were informed of the situation at the interview. The Complainant stated that she did not receive any notification of that. The Complainant states that she was never advised that this was a backfill role to cover a secondment. She states that she was informed that it was a CE supervisor role without any stipulations.

Ms Smith’s role came to an end at the AGM in August 2023.

Breda Murphy

Ms. Murphy took up the role of Enterprise Manager in January 2022. The Complainant commenced her role in March as the CE supervisor. That was the role that Ms. Murphy left.  There were also two assistant supervisors to support the Complainant. The Complainant reported to Ms. Murphy. Both were aware of what the other was doing at all times. The Complainant was an excellent worker.

There was a HR issue that happened when Ms Murphy was on leave. X had some personal issues. Ms. Murphy was confident that the Complainant was well qualified to deal with it. The Complainant emailed Ms Murphy setting out all of the issues to her about. There was a meeting with Ms. Smith about the issue. During that meeting she discussed her duties. A HR consultant was brought in to deal with the Complainant T&C issue.

In September 2023 the Respondent started to address the funding for the Enterprise Manager role. The funding application wasn’t published until December 2023 with a closing date February 2024.  However, to date, no funding has been received. Ms. Murphy highlighted the issue with the board in late 2023 as she feared the funding wouldn’t be made available on time. The funding was not made available. Her secondment then ended in December 2023 so she was moved back to the CE supervisor role. The Complainant’s fixed term contract ended so her employment ended. Ms. Murphy was on a 2 years leave of absence so she automatically went back to her previous role once that 2 year period expired.

The Complainant said that she was not aware that her role was to back fill Ms Murphy’s role. If she had known she might not have applied for the role. The Respondent states that she was made aware of the issue, and she was made aware her contract was for two years only. That is set out in numerous places, the offer letter and in the contract. The Complainant states that she was aware she had a fix term contract, but she was not aware that she was back filling Ms Murphy’s role and her role was contingent on Ms. Murphy’s role getting funding. If she was aware of that she would not have left her permanent full-time role in Ronanstown.

Correspondence dated the 23.12.2021 in relation to the recruitment states that there will be a public recruitment competition at the end of the role. However, as the Complainant points out Ms. Murphy did not apply for the role when it ended in December 2023.  Ms. Murphy stated that in September 2023 the Complainant was told that role was a back fill position. The Complainant was 18 months in the role at that stage.  

The Complainant relies on The Board of Management of Malahide Community School v Dawn Marie Conaty [2019] IEHC 486 wherein the High Court addressed the issue of the entitlement of an employer and employee to contract out of the Statutory provisions provided for under the Unfair Dismissals Act 1977 (as amended) and the exception under Section 2(2)(b) of the Act.

 The Complainant argued that in that case the Court was clear that the exception “requires an assessment of the contractual arrangements between the parties in the round” and in the current case, taking into account the nature of the advert for the post, the contracts executed and the normal arrangements with regard to contracts for CE supervisors always being subject to the approval of grant funding for the position by the Department of Social Protection. Further the Court referenced that in order to avail of the protections under the Section the termination date must be ascertainable from the outset. The Complainant submitted that despite the fact that the date of the 31st December, 2023 was referenced this was not the determinant but instead the provision of funding from the Department is always the determinant with regard to the termination date of the role of CE Supervisor. At para 67 of the judgement she argued that the Court stated the “fact that it could not be known at the time that the contract was entered into whether these contingencies would occur has the legal consequence that the contract cannot be regarded as being for a fixed term” further “the language of a contract must be unequivocal in order to come within the exemption. The reference to the contingency of the contract being renewed is not something which a reasonable person would discount as merely aspirational and accordingly has no legal effect.”. In that regard, the Complainant argues, it was entirely reasonable for the Complainant to rely on the facts as set out in the advertisement for the position, the contracts provided and the standard operation of the role of CE Supervisor within the confines of the funding from the Department.

The Respondent’s position is entirely at odds with the Complainants. They were always of the view that the Complainant had a two year fixed term contract which expired in December 2023 and that was the start and end of it all. Thay also stated that the Complainant was aware of all of the relevant facts prior to entering into the contract.

I find the Complainant’s contract was not only contingent on funding coming from the Department but was also, unbeknownst to the Complainant was also contingent on funding for Ms. Murphy’s role as Enterprise Manager. I am satisfied that the Complainant was at the time of entering into her contract was unaware of this fact. She was not informed of that situation until October 2023. Both the Complainant’s and the Respondent’s evidence verify that fact. At the time the contract was entered into it was not known whether either of these contingencies would occur. That could have legal consequences for the validity of the fixed term contract.  However, the differences between the Complainant’s situation and Ms Conaty’s, as set out above are that Ms Conaty was given assurances that her contract would be renewed and that she would be made permanent after four years, the complainant was not. Ms. Conaty’s contract did not disapply the Unfair Dismissals Act however the Complainant’s contract commencing on 02.10.2023 and ending on 31.12.2023 did.  It stated “This is a 3 months fixed term contract of employment subject to successful completion of which expires on 31.12.2023. The provision of the Unfair Dismissal Act 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 contract” It is in those circumstances that I find that the Complainant case differs from the Conaty case relied on. I find that her employment ended by virtue of the expiry of the fixed term contract. The clause disapplying the Unfair Dismissal’s act can be relied on by the Respondent. The issue of funding was more complicated that just securing funding for the Complainant. Funding had also to be secured for Ms. Murphy’s role. The Respondent could never have made any guarantees or given the Complainant any assurances that her role might continue in those circumstances.

Having considered the matter, the evidence adduced, and the documentation submitted I find, for the reasons set out above, that the complaint fails.

The Complaint fails.

Fixed term contract, Unfair Dismissal act, termination of fixed term contract, exceptions.