Case Number: ADJ-00032278. Workplace Relations Commission

• Docket Number: ADJ-00032278
• Hearing Date: 06 July 2021
• Date: 07 September 2021
• Court: Workplace Relations Commission
• Respondent: Clare County Council

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00032278

Parties:

	Complainant	Respondent
Parties	John Morgan	Clare County Council

Representatives Arek Muszynski, SIPTU Keith Irvine, LGMA

Complaints

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-00042721-001	26/02/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00042721-002	26/02/2021

Date of Adjudication Hearing: 06/07/2021

Workplace Relations Commission Adjudication Officer: Ewa Sobanska

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359 of 2020, which designates the WRC as a body empowered to hold remote hearings.

At the outset of the hearing the parties’ attention was drawn to the judgment from the Supreme Court in the case of Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 and the key points of the judgment were outlined to the parties. The parties were informed of the procedural changes applicable to the hearing of all complaints in light of the judgment. The parties were invited to present their views in that regard. Both parties indicated that they did not envisage a conflict of evidence arising during the course of the hearing. Both parties expressed a wish to proceed with the hearing.

No serious and direct conflict of evidence emerged in the course of the hearing and consequently there was no requirement for me to adjourn the hearing to await the amendment of the Workplace Relations Act, 2015 and related enactments to grant Adjudication Officers the power to administer an oath or affirmation.

The parties were afforded the opportunity to examine and cross-examine each other’s evidence as part of the hearing.

Background:

The Complainant commenced his employment with the Respondent on 1st October 2018 on a fixed-term contract for duration of 12 months. The Complainant submitted his claim to the Director General of the WRC on 26th February 2021 contending that he was unfairly dismissed, was employed on successive fixed-term contracts without any objective grounds justifying the failure to offer a contract of indefinite duration and was not granted the contract of indefinite duration when he was entitled to same.

Summary of Complainant’s Case:

SIPTU on behalf of the Complainant submits as follows: The Complainant commenced employment with the Respondent on 1st October 2018 as a General Operative on a fixed-term contract for duration of 12 months. His contract was extended by being informed by the foreman that he was going to be kept on, about two weeks before the expiry date of the first fixed-term contract, and another 12 months contract was supplied. The contract then was terminated on the date specified in the second contract. The Complainant had unblemished record of employment. The Complainant contends that he was unfairly dismissed, was employed on successive fixed-term contracts without any objective grounds justifying the failure to offer a contract of indefinite duration (CID) and was not granted the CID when he was entitled to. Legal arguments “6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” In the Labour Court Decision FTD 112 Revenue Commissioner & Beary the Court stated: “In relation to the facts of the instant case Counsel for the Respondent correctly submitted that the expiry of a fixed term contract without its renewal is a dismissal “ Section 5 of 1993 Act states that in “a) determining if dismissal is unfair dismissal, regard may be had to the reasonableness or otherwise dismissal (whether by act or omission) of the employer in relation to the dismissal, b) the extent of the compliance of failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of the 1977 Act.” SIPTU submits that this means that some sort of a hearing must occur at which the employee can plead his case and has right to appeal the decision. Upon dismissal of the Complainant the right to appeal was not offered. SIPTU submits that no objective grounds for extending the contract were given to the Complainant other than “he would be kept on “. Section 8(2) of the 2003 Act provides that: “Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal”. The Complainant’s fixed-term contract was renewed on one occasion without objective grounds given to justify the renewal and failure to offer contract of CID. In Labour Court Determination FTD 1235 Waterford City Council & Kennedy the Court stated that : “ It is clear from a plain reading of s.8(2) of the Act the requirement to inform a fixed term employee of the objective grounds justifying the renewal of his or her fixed-term contract carries a concomitant obligation to explain why a contract of indefinite duration is not being offered“ and citing in the same determination Dr Mohammed Khan vs HSE North Eastern Region [2007] “ On reading of the Section as a whole it is clear that it is intended to ensure that the employer definitively commits itself , at the point at which the contract is being renewed, to the grounds upon...