EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Margaret Walshe – Claimant MN430/2012
Department of Arts, Heritage & Gaeltacht - Respondent
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. E. Kearney BL
Members: Mr. W. O'Carroll
Ms H. Murphy
heard this claim at Galway on 27th February 2014
Claimant(s) : Purdy Fitzgerald Solicitors, Kiltartan House, Forster
Respondent(s) : Ms Cathy Maguire BL instructed by Ms Lorraine Matthews, CSSO,
Osmonde House, Little Ship St, Dublin 8
Summary of Case
The claimant was employed as a visitor guide by the respondent on a series of fixed term contracts from 2002 until 2011. The fixed term contracts commenced at the end of February and expired at the end of October each year. Accordingly there was a gap of four months between each contract every year.
The Tribunal was told that following the successful completion of three consecutive seasons of employment, visitor guides can be awarded an exempt status from the open recruitment process for the following season. The claimant received this exemption status for a number of seasons but her performance was deemed unsatisfactory for the 2011 season. Accordingly she was required to undergo the normal recruitment and selection process for the 2012 season. She was invited to apply for the position by way of letter dated 22 February 2012 but she did not apply for the position.
By way of preliminary argument, the respondent contends that the Tribunal has no jurisdiction to hear this claim by reason of the fact that the series of contracts which the clamant was employed under were fixed term contracts for a specified duration and for a specified purpose, and were not renewed within a three month time period as required by the definition in section 2(2) B of the 1977 Act.
The respondent claims that there was no dismissal, in circumstances where the fixed term contract simply expired, and the essence of the claimant’s case is that her contract was not renewed. The respondent claims that the claimant could have gone through the selection process and re applied for the position for the following year. She failed to do this.
The claimant makes two arguments, firstly that she was dismissed by reason of the fact that she was required to go through a selection process, in circumstances where for the proceeding 7 years she had not been required to go through such process, having acquired during these years an annual exemption due to her good performance. Therefore the claimant argues that she had an expectation that her contract would be renewed for the following year.
Secondly, that claimant argues that the four month period which elapsed between the expiry of one contract and the next years contract was a lay off period.
The claimant was required to go through the selection process due to the fact that her performance during the previous years contract was assessed to be not fully satisfactory. It is noteworthy that the claimant had, for the initial three years in which she was engaged by the respondent, to go through the selection process each year, she only thereafter, due to good performance became exempt from the selection process annually.
Under section 2(2)a of the Unfair Dismissals Act 1977 as inserted by section 25 of the Protection of Employment (Exceptional Collection Redundancies and Related Matters ) Act 2007 states that:
(2A) 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 rights commissioner, the Tribunal or the Circuit Court, as the case may be, the 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,
(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.
Section 2 (2) B states that:
(2B) In subsection (2A), ‘ antecedent contract ’, in relation to a prior contract, means—
(a) a contract of employment of the kind mentioned in subsection (2) the term of which expired not more than 3 months before the commencement of the prior contract, or
(b) each of a series of contracts the term of the last of which expired not more than 3 months before the commencement of that of the prior contract and the term of the other or of each of the other contracts in the series expired not more than 3 months before the commencement of that of the other, or the next, contract in the series,
being a contract or contracts made between the employer and the employee who were parties to the prior contract and the nature of the employment under which was the same as or similar to that of the employment under the prior contract.”.
It is common case that the claimant was not re-employed under the contract the subject matter of this claim or any previous contract within three months of the expiry of her preceding contract, therefore the definition of antecedent contract to comply with section 2(2) a is not complied with. It could be open to the claimant to invoke the jurisdiction of the Tribunal through section 2 (2) a of the 1977 Act only if a claimant complies with the four criteria as set out thererin and on complying with all of these criteria, then the contracts combine can be regarded by the Tribunal for computing continuous service so as to qualify under the Unfair Dismissals legislation so as to invoke the jurisdiction of the Tribunal.
The Tribunal must firstly look at the contract itself and examine its express provisions, where such contract is in writing and is signed by both parties. The express provision is that it is for the period 1 March 2011 to 31st October 2011 and each preceding year the contract was for the same duration, and expressly the purpose of the contact was to provide temporary guide / information officer at Connemara National Park.
The Tribunal rejects the argument that the four month period between each successive contract was a period of lay off. Lay off is in itself, and the circumstances in which it arises is quite clearly dealt with within the terms of the written contract itself.
The Tribunal rejects the argument that we can disregard the three month time period, under section 2(2) B and consider solely whether under section 2(2)A (d) the purpose of entering into a subsequent contract was for the avoidance of liability under the 1977 Act, for the reasons above.
The Tribunal is satisfied that the gap between each annual contract is too long, (being over three months) and therefore, the claimant fails to satisfy this first hurdle.
Further the claimant’s arguments that she was dismissed for poor performance disentitling her to an exemption from the selection process for a subsequent contract is misconceived in the view of the Tribunal, as she could only make a claim, her contract being one for a fixed term, having complied with section 2 2 A of the 1977 act as amended.
Therefore the Tribunal declines jurisdiction in this matter.
The claim under the Minimum Notice and Terms of Employment Acts 1973 to 2005 fails and is hereby dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal