Limerick City & County Council (Represented by Local Government Management Authority) v Richard Moran (Represented by Services Industrial Professional Technical Union)

 
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Labour Court (Ireland)

FULL RECOMMENDATION

UD/17/46

DETERMINATION NO.UDD182

ADJ-00000762 CA-00001154-001

PARTIES:
Limerick City & County Council (Represented by Local Government Management Authority)
and
Richard Moran (Represented by Services Industrial Professional Technical Union)
SUBJECT:
1

1. Appeal Of Adjudication Officer Decision No: ADJ-00000762 CA-000001154-001

BACKGROUND:
2

2. The Employee appealed the Decision of the Adjudication Officer to the Labour Court on the 27th of March 2017 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 25th October 2017. The following is the Court's Determination:

DETERMINATION:
Background
3

This matter comes before the Court as an appeal by Richard Moran (the Appellant) of an Adjudication officer's decision made under the Unfair Dismissals Acts, 1977 to 2015 (the Act) in a complaint against his former employer Limerick City Council (the Respondent).

4

In a decision dated 1 st March 2017 the Adjudication Officer decided that the complaint of unfair dismissal was not well founded.

5

The Appellant commenced employment with the Respondent on a one year fixed term contract of employment on 17 th November 2014. He was dismissed on 16 th November 2015, the date which coincided with the expiry of his one year fixed term contract.

Preliminary issue
6

The Respondent submitted that the provisions of the Act do not apply to the dismissal of the Appellant. The Court decided to deal with that aspect of the within matter as a preliminary matter insofar as the Court's finding on this matter could be determinative of the entire case.

7

The Respondent submitted that the Act at section 2(2)(b) provides that the protection of the Act does not apply when the dismissal arises only from the expiry of a contract's term or the specified purpose is completed. The Respondent submitted that in the within case the Appellant was dismissed solely because of the expiry of the term of his contract.

8

The Respondent drew the Court's attention to the Act at section 2(2)(b) which provides as follows;

2 Subject to subsection (2A), this Act shall not apply in relation to

(1)(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.

9

The Respondent submitted that the contract of the Appellant contained a clause which provided that the employment would be for one year commencing on 17 th November 2014. That contract also stated that it was “a fixed term contract of employment and therefore the provisions of the Unfair Dismissals Acts, 1997–1993 will not apply to the termination of this contract where such termination is by reason only of the expiry of this fixed term”. The Respondent also submitted that the contract was signed by both parties. The Respondent submitted that the employment of the appellant ceased upon the termination of his contract.

10

The Appellant accepted the content of his contract as submitted by the Respondent but also submitted that the termination of his employment was related to factors other than the expiry of the term of that contract. The Appellant submitted that at or about the time of his appointment to a fixed term contract five other persons were similarly appointed and engaged in the same work as the Appellant. He also submitted that all other appointees then remaining in the employment of the Respondent were retained by the Council on the expiry of their fixed term contracts. He submitted that in his case the Respondent had engaged a process of performance review and that it was the fact of his involvement in this process which was the reason his employment terminated.

11

The Respondent, when questioned by the Court, accepted that all other fixed term colleagues of the Appellant who had been appointed to carry out similar work at or about the same time as the Appellant and who remained in the employment were retained beyond the expiry of their contracts. The Respondent explained that the six appointees, of which the Appellant was one, were appointed to meet a need of the Respondent. The Respondent, in September 2015, secured approval for the recruitment of permanent staff to meet the needs of the Respondent which were at that time being fulfilled by the staff employed on fixed term contracts. The process of appointing permanent staff was completed in April 2016 and the continuation in employment of fixed term contract staff was to provide for service delivery in the interim period prior to recruitment of the permanent staff.

12

When questioned by the Court the Respondent accepted that the Appellant had been engaged in a process of performance review and that if he had not been so engaged he would have been retained beyond the date of expiry of his fixed term contract.

13

The Court has considered the submissions of the parties on the application of the Act to the dismissal of the Appellant. The Court concludes that, but for the fact he had been engaged in a process of performance review, the Appellant, in common with his fixed term colleagues, would have been...

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