Complainant

Respondent

Parties

Colm  Griffin

Department Of Social Protection

Representatives

Paul Mcsweeney FORSA

Hugh Guidera BL Instructed by the Employment Law Section state Solicitors Office

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-00069299-001

15/02/2025

The Complainant was employed on a fixed term contract and claimed his contract was terminated unfairly when the conditions for his termination did not exist.

The Complainant worked as a TCO(Temporary Clerical Officer)  at the DSP in the Tralee Intreo from Oct 9th 2023 to Jan 10th 2025… A short time after he joined (Nov 2023) he alleged a member of staff (not of a higher grade) would turn off a light over his head daily when leaving the office.  The Complainant attempted to stop this politely but it continued. He contacted management and got no apology and minor input errors spotted were reported to management without fixing error for customers. 

On Jan 19th 2024 management asked him to come to office. They wanted to discuss tensions within team. They confirmed that if errors are spotted it is not necessary to report them. Just correct the error for customer. What concerned him at meeting that he was told he was slower dealing with customers than his colleagues. This was not true. An EO stated at the meeting that ‘there was never a problem in the PPC team before’ as if to suggest the Complainant was the problem. He alleged the HEO stated that it ‘is not for us to tell customers it is for customers to find out themselves’. It was clear his friendly approach to the job was not appreciated. 

The Complainant compiled a list of issues he felt needed to be addressed and emailed his Manager. She replied that it had been referred to the AP. A meeting was held and most of his points dismissed and there was a disagreement about work and mental health.

When the Complainant returned to work after parental leave he got on with his job and felt he was settling into the place. On May 1st became he aware that the staff member had again reported a very minor input error to two managers and again failed to correct the error for the customer. The Complainant went to line manager and said we can go back to reporting errors or get on with doing our jobs professionally. He alleged she spoke over him and told him that his poor working relationship with the other staff member would be reflected in his PMDS.

 This was the final straw for the Complainant. He requested information on how he went about reporting this matter to HR. he did not expect to be punished for someone failing to respect his dignity at work rights. A week later he still had no reply so he emailed her again. He received a reply that the AP would be in touch to arrange a meeting on the matter. He pressed the AP on details for HR but he insisted the meeting with him had to take place. At the  meeting instead of providing him with HR details the Complainant was told he was imposing a work support plan on him. At this point the Complainant joined Forsa after this and raised concerns about the matter directly with HR. HR then asked his Forsa representative to come to Kerry and meet the AP and the Complainant. The meeting was scheduled for June 18th at 10am and the Forsa rep travelled from Sligo the previous evening. At 10.15am there was still no sign of the AP. The Forsa rep checked his emails and the AP had cancelled the meeting at 9.50am saying that he had to take a day off work unexpectedly. Further days for this meeting to take place were scheduled and cancelled by the AP and he never showed up at a Support Plan meeting that the Complainant  was scheduled to have with him either. Finally a meeting was scheduled for Aug 15th. This meeting went on for 3 hours.. At this meeting the Complainant raised what he had said to him at the meeting in January. He did not deny it and simply said ‘if this is going to get unprofessional he will have to terminate this meeting. He used the entire three hours to read out emails the Complainant had sent to management. He made no attempt to address any issues. At the end of the meeting he said he was imposing another support plan on the Complainant and that he was going to ensure the complainant got an Unsatisfactory rating on his PMDS.

 The Complainant contacted the PO directly and asked for a meeting with her. She asked the complainant to specify what the meeting was about and he told her it was to discuss the irrational behaviour of the AP. She dismissed the Complainants  request saying it was a DAW issue that needed to be raised with HR. The first support plan meeting was with the HEO. At subsequent two meetings the HEO chaired them and the AP sat in as an observer. At the start of both meetings the complainant was told the meetings could not be recorded. 

Subsequent to meetings a summary of what happened was emailed to the Complainant which was wildly inaccurate. After the final support plan meeting they contacted HR and asked for the Complainants contract to be terminated. He was off work on Friday Sept 13th and he got a notification from HR to his personal email address at 5pm saying he had 5 days to appeal this if he wished to do so. The AP and HEO were ccd on this email. The Complainant submitted a 114 page 35,000 word appeal to HR. Forsa assisted in it being compiled. A few weeks later a report was emailed to him by HR. The report was compiled by an external officer. It heavily criticised many of the things that management did and recommended that his contract is not terminated. The Complainant finally got time to submit DAW cases.

 The first issue the Complainant submitted against the AP was thrown out without any investigation. No valid explanation has ever been provided for this. The one against the clerical officer got to the stage where she replied. Her reply included allegations of a personal hygiene nature, that the Complainant invaded her personal space, that he whistles when he is not dealing with customer or he is on his mobile phone or he sits back on the seat with his hands behind his back. A designated person was appointed and her job was to meet with both. The Forsa rep also attended. Unfortunately the person the case was taken against went on long term sick leave at this point. On Dec 12th the Complainant was told that the specific purpose for which he was recruited had ended and Jan 10th would be his last day. Almost immediately after this the clerical officer returned to work. She was interviewed by designated officer. On Jan 9th HR advised that mediation would be the next stage of DAW but since his contract was coming to an end it was not necessary. 

The Complainants contract says that he has a job in the PSC/PPN section until it can filled from permanent resources. The Complainants main case was there was another temporary employee doing the work (or some of it) that he was employed to do and therefore the work was not being done completely by permanent resources and this meant the reason stated to terminate his temporary contract  was not valid and he was unfairly dismissed.

The Respondent submitted that this is a straightforward matter, with a small number of pertinent facts. In short, the Complainant was engaged as a Temporary Clerical Officer (“TCO”) specifically to assist with workload associated with the Public Services Card (“PSC”) project. As outlined below, it was agreed between the parties that the contract was to end “when the PSC project can be managed within existing permanent resources”. This is precisely what happened, and what was clearly notified to the Complainant with respect to the reason for termination. The Respondent gave evidence that the reason for termination was the expiry of the contract and, therefore, in light of the statutory provisions and authorities outlined below, the 1977 Act does not apply.

 Notwithstanding that there is a straightforward ‘path’ to the resolution of the complaint in the Respondent’s favour, the Respondent proposes to outline a factual background to the proceedings in circumstances where the Complainant has submitted a lengthy Complaint Form with a detailed narrative concerning multiple issues pertaining to his period of employment. Although this factual background is lengthy, it is not reflective of the complexity of the dispute. 

The Respondent submits that the Complainant has not made out his Claim and is not entitled to any redress whether pursuant to pursuant to 1977 Act or at all. 

The Complainant’s contract of employment with the Department, dated 3rd October 2023 (the “Contract”) confirms that the Complainant was offered appointment as a TCO in the Department with effect from 9th October 2023. With respect to tenure, the Contract provided as follows at clauses 3 to 5:

“3. The appointment is to a temporary, non-established position in the Civil Services. It carries no entitlement to established status, by way of limited competition or otherwise.

 In accordance with the Protection of Employees (Fixed Term Work) Act 2003, your contract is a fixed term contract on the following grounds. This appointment will commence from 09/10/2023 and will be for the purpose of general clerical officer duties to assist with facilitating current additional workloads associated with the Public Service Card project, which may include the provisions of cover for permanent staff released to work on this project. The purpose of this contract will end when the PSC project can be managed within existing permanent resources.

 The appointment therefore cannot result in an offer of a contract of indefinite duration…

 The Department of Social Protection reserves the right to terminate your employment prior to the date of cessation on giving the appropriate notice set down in the Minimum Notice and Terms of Employment Acts 1973 to 2005. The Department of Social Protection also reserves the right to terminate your employment for stated reasons”.

 Clause 7 of the Contract provided that “the Unfair Dismissals Acts 1977-2005 will not apply to the termination of your employment by reason only of the expiry of this fixed term contract without it being renewed”. 

By email dated 24th November 2023, the Complainant set out his initial grievances and the Respondent went into considerable detail in their submission to supply their view of these grievances and other grievances and the processes they used to deal with them. The Respondent did not go into these issues in any great detail as while they supply a background to the employment working relationships and issues in the office they are not central to the decision to dismiss the Complainant.  

By letter dated 12th December 2024 (the “Termination Letter”) from Ms. Alwyn Duffy of the Human Resources Division of the Department, the Complainant was notified that “the specific purpose for which you were recruited has ended and therefore your temporary contract with this Department will now cease”. The Termination Letter noted that “in accordance with the terms and conditions of your employment with the Department… your temporary clerical officer contract will end on Friday 10/01/2025.”.

By email dated 19th December 2024, Mr. Paul McSweeney of Forsa wrote to Ms. Flynn noting receipt of the Termination Letter and querying, inter alia, the basis for same, and whether it was proposed to recruit new TCOs.

 By reply dated 7th January 2025, Ms. Flynn stated as follows:  

“Recently there were a number of temporary clerical officer posts filled by additional permanent clerical officer posts one of which is Colm Griffin’s, hence the ending of his contract. No new TCOs are required to facilitate the current workload with the Public Service Card project. “

(An employee) of the Respondent was off work for a period of time resulting in a delay in the Dignity at Work process. However, the process has since progressed and the report is with the HR manager for decision. I expect that this matter will be concluded in the coming days and Colm will have a decision before Friday.  

The responsibility of the PMDS team in HR is to facilitate and oversee the administration of the PMDS system, the final assessment will be determined following engagement between the jobholder and the manager”.

The Complainant has not made out a valid claim of unfair dismissal and cannot rely upon the 1977 Act.  Section 2(2)(b) of the 1977 Act provides that the 1977 Act shall not apply in relation to: 

“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…” 

In respect of the Contract in these proceedings, the three discernible requirements in section 2(2)(b) have been satisfied:

the Contract is in writing; 

the Contract has been signed by both parties; and 

the Contract contains a statement that the 1977 Act shall not apply to a dismissal concerning only of the expiry or cesser aforesaid at clause 7.

 With respect to (c), it will be recalled that clause 7 of the Contract provided that “the Unfair Dismissals Acts 1977-2005 will not apply to the termination of your employment by reason only of the expiry of this fixed term contract without it being renewed”.

 Section 2(2)(b) may be contrasted with section 13 of the 1977 Act, which provides that “a provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of this Act) shall be void in so far as it purports to exclude or limit the application of, or is inconsistent with, any provision of this Act”. Simons J. addressed this distinction at para. 63 of Board of Management of Malahide Community School v. Conaty [2020] 2 I.R. 394: “The relationship between section 2(2)(b) and section 13 can be summarised as follows. The former allows for the waiver, in advance of the commencement of employment, of rights which would otherwise have accrued under the Unfair Dismissals Act. The latter, by contrast, protects rights which have already been acquired”. It is clear, therefore, that the proceedings herein are ones in which section 2(2)(b), as opposed to section 13, applies, as they concern a waiver in advance of the commencement of employment.

 There is no loss of statutory rights previously acquired in these proceedings by virtue of the signing of the Contract. The Complainant entered into the Contract prior to the commencement of his employment and did not ‘lose’ any rights which had accrued. 

Section 6(1) of the 1977 Act, with respect to burden of proof, prescribes that “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”. Ordinarily, therefore, in unfair dismissal claims, the onus of proof rests on the employer; however, this is only where the 1977 Act applies. It is noted at para. 20-117 of Meenan, ‘Employment Law’ (Round Hall, 2nd edn, 2023) that the presumption under the Act that all dismissals are unfair applies “except… where there are jurisdictional points at issue (for example, the employee’s continuity of service or time limits)”.  

The Labour Court recognised in Kelly v. Iarnród Éireann UDD2453 that the burden of proof rested on the Complainant in similar cases to demonstrate that his employment was terminated for reasons other than the expiry of his contract: 

“It is accepted that the relevant contract in this case was in writing and signed by both parties in advance of the commencement of the contract. It is also accepted that the contract specified a fixed term of 24 months and contained a provision stating that the Act shall not apply to a dismissal consisting only of the expiry of the fixed-term period of employment. The Complainant’s evidence was that he was aware that his contract of employment was a fixed-term contract of 24 months’ duration. He was aware of the clause in his contract that stated that the protections of the Unfair Dismissals Act did not apply to a dismissal where the reason for the dismissal was the expiry of the contract.

In the circumstances it is for the Complainant to show that his employment was terminated for reasons other than the expiry of the fixed-term specified in the contract of employment.

The Complainant’s case is that he was informed by Mr Walsh that the reason that his contract was ending was because HR had issues with his interpersonal skills. Mr Walsh denied that assertion. His position is that he gave the Complainant some informal feedback after informing him that his contract was due to expire.

While in the Court’s view the exit process was clearly lacking from a good practice perspective, the only matter for consideration in the within appeal is whether or not the termination of the Complainant’s employment was based solely on the cessation of his fixed-term contract. There is no legal requirement for an employer to give formal written notice of the termination of a fixed-term contract, outside the terms already specified in writing in the contract of employment.

The Court accepts the Respondent’s position that the decision not to renew the Complainant’s contract of employment was made following a review of resourcing requirements for the location, and that the Complainant’s role was not backfilled, as there was no business case or approval to increase headcount numbers. The Court further notes that approval was secured to increase headcount numbers in February 2022, over 7 months after the Complainant left the organisation. In these circumstances the Court is satisfied that it was never the intention of the Respondent to extend the contract beyond the fixed-term specified in the Complainant’s contract of employment.

As a result, having regard to all the above, the Court finds that the termination of the Complainant’s employment was based solely on the cessation of his fixed term contract on 30 July 2021”. (emphasis added) 

In English v. Store-All Logistics Ltd ADJ-00052205, the WRC again dealt with a situation highly similar to the one presented in the Complaint herein: 

“The Acts do not apply to a dismissal occurring before or after the expiry of the contract or where termination of employment was related to factors other than the expiry of the term of that contract. In Limerick City & County Council v Richard Moran UD/17/46, the Labour Court in finding that the complainant was unfairly dismissed, concluded that issues raised in the complainant’s performance review were the determining factor in the non-renewal of the employment contract. On the basis that the expiry of the fixed term contract was not the only reason for the complainant’s dismissal, the Labour Court concluded that the exclusion set out in s 2(2)(b) of the Unfair Dismissals Acts did not apply. 

It was the Respondent’s case that the Complainant’s services were no longer required due to a 25% decrease in demand in the warehouse the Complainant was assigned to. According to the Respondent, this was the sole reason for bringing the Complainant’s employment to an end and, as the dismissal consisted only of the expiry of the fixed-term contract, the Respondent is entitled to rely on the waiver at s 2(2)(b) of the Acts. The Complainant acknowledged that he was on notice of the legal effect of the fixed-term contract. However, he had formed an expectation that his fixed-term contract would be renewed. He contends that his dismissal was related to factors other than the expiry of the term of that contract. 

The question for me therefore in this case is whether the Respondent is entitled to rely on the exclusion clause at s 2(2)(b) of the Acts. I am mindful that s 2(2)(b) was enacted to provide a means for no liability regarding the use of fixed-term contracts. However, the Respondent may not be able to rely on s 2(2)(b) if the termination was due to factors other than the expiry of the term.

 I find the Complainant’s dismissal was not due to factors other than the expiry of the contract and therefore the Acts do not apply to the Complainant’s dismissal. I find on balance that it was more probable that the Complainant was dismissed because his temporary contract had ended and there was no further need for the Complainant due to a significant decline in customer demand within the warehouse in which he worked. I accept that the Complainant was not replaced at the warehouse in which he worked. In relation to the two other employees whom the Complainant claimed had their fixed-term contracts renewed, I accept the evidence of Ms Collingwood that one of these employees was only one year into a two-year fixed-term contract; and the other (notwithstanding he was on probation) was also mid-contract. I accept that it was Ms Collingwood who decided if the Complainant’s contract was to be renewed, and I accept that she was unaware of the customer complaint concerning the Complainant or of his recording of a video in Mr Donoghue’s office”. (emphasis added) 

By way of contrast, as an example of a determination by the Labour Court that section 2(2)(b) could not be relied upon by an employer, in Limerick City & County v Richard Moran UDD182, the employer “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”:

 “The Respondent has accepted before the Court that the participation of the Appellant in performance review process was in fact the determining factor inthe non-renewal or extension of the Appellant’s contract of employment. The Court therefore determines that the exclusion set out in the act at section 2(2)(b) does not apply to the dismissal of the Appellant”. 

No such factual scenario arises in respect of this Complaint. 

The Respondent gave evidence at the hearing that: 

The reason for termination was the expiry of the Contract;  

There are no further PSC TCO contracts in Tralee. Any TCO contracts in respect of the Tralee office are for varying purposes; 

PSC requirements have now become a permanent part of the workload of Intreo centres. There has been a move towards assigning permanent staff towards PSC roles. The PSC position in the Tralee office is presently, and will be going forward, staffed from permanent members and not TCO contracts; and the Termination Letter was not issued in any manner as a result of or in relation to performance issues, disciplinary issues, or any complaints involving the Complainant. The Contract was terminated solely for the reasons set out in the Termination Letter. 

The Complainant has not identified a basis for termination, other than the expiry of the Contract, in circumstances where the burden of proof rests upon him.  

As noted at the outset, the volume of correspondence or factual background do not reflect the actual complexity of the Complaint before the decision-maker.

The Respondent submits that the Complainant is not entitled to any relief in respect of the Complaint.

The Complainant had many complaints and grievances about his time in employment with the Respondent and the way his fixed term contract came to an end.  He was understandably aggrieved when the contract was not renewed.  He advised he was in a much better paid job now and was not suffering any ongoing losses.  

Clause 7 of the Complainants contract stated

“The Unfair Dismissals Acts 1977-2005 will not apply to the termination of your employment by reason only of the expiry of this fixed term contract without it being renewed.”

I am guided in my decision by the applicable law.

The Unfair Dismissals Act 1977 (as amended) provides:

“2 (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 … 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. “

The Complainant, Mr. Tony Power (Assistant Principal) and Ms. Mairin Haran (Ast Secretary General) all gave evidence to the Hearing. The Complainant set out his grounds as to why he thought the contract was ended and these related to operational and interpersonal matters. At the conclusion of his evidence he focused on the fact there was still another temporary employee in the office and that they were doing similar work to him. This, in summary, appeared to be his main ground to allege a breach of the Act. There was no evidence supplied or inferred that the job would turn into a full time role. In Mr. Powers evidence he confirmed that the Complainant was not dismissed for any misconduct and that everyone in the office are trained in various roles and can do various roles. Ms Haran advised she was responsible for all the admin in the offices around the country and that she did not work with the Complainant. She advised there were two temporary jobs in the Tralee office and they were sanctioned under different reasons. She confirmed that the Complainants contract was ended as the work he did could be done by full time staff. Ms Haran advised that hiring fixed term temporary staff was a very common feature in the Department for various projects/work.

I have considered the written and oral submissions in this case in coming to my Decision. The Complainant was employed on a fixed term contract that stipulated his contract would end when the work he was engaged to do could be done by full time staff. The Respondent confirmed, under affirmation,  that a full time person assigned to the Tralee office was able to complete the work that the Complainant was assigned to do. At the conclusion of the Hearing the Complainant made the case that there was another temporary employee still retained and was doing the work he was doing. The Respondent was asked by the Adjudicator to supply (with the name of the person redacted) the contract for the other temporary employee. This contract was supplied to the Complainant side. On examination this contract was for a totally different purpose than was the purpose for employing the Complainant. The Complainant made out that the internal interpersonal disputes and conflicts contributed to the decision to terminate him and while the background supplied by both parties would suggest the working relationships were strained that does not supplant the main reason for terminating the fixed term contract was the capability of the Organization to deal with the work with the full time staff employed and not require temporary staff to do the work. This was a justifiable cause to terminate the Complainanrts contract. The contract was set up as a fixed term contract for a specific purpose and there was no intention by the Respondent for it to become a permanent role.

I find that the dismissal of the Complainant consisted only of the expiry of the term, the contract was in writing, was signed by or on behalf of the employer and by the employee and provided that the Unfair Dismissals Act does not apply.  I find the complaint to be not well founded.

I find that the Complainant was not unfairly dismissed.

Unfair Dismissal