Michele Henry v Ulster Bank Ireland (UD 1065/09)

LEGISLATION: Unfair Dismissals Acts, 1997 TO 2007 (the “Acts”)
JURISDICTIONS/SUBJECT MATTER: Service requirement under the Acts

A recent batch of reviews from the Employment Appeals Tribunal included this interesting case in relation to service requirements for an unfair dismissal claim.

Facts

The claimant/employee commenced work with the respondent employer on the 26 November 2007 under a fixed-term contract. The project the employee was working on was coming to an end and the employee received one month’s notice on 21 October 2008. The employee’s employment was terminated on the 21 November 2008.

Counsel for the employer submitted that the employee did not have the requisite one year service under the Acts to take an unfair dismissal claim.

It was submitted on behalf of the employee that she had worked for 52 continuous weeks and that statute states that one year equates to 52 weeks. Reference was made to the Minimum Notice and Terms of Employment Act where a “year” is defined as any period of fifty two weeks. The employee also referred to a letter in which the employer informed the employee that the date of commencement for her employment was 30 October 2007. This start date was subsequently delayed by the employer in order to acquire a work permit for the employee. The contract of employment was not provided to the employee until April 2008.

Counsel for the employer produced evidence to the effect that the employee was still working in her previous job until 22 November 2007 and suggested that the employee did not expect to commence her employment with the employer on 30 October 2007 as alleged.


Determination

The Tribunal found that no employment relationship existed between the parties prior to the 26 November 2007 and that the employee did not have the requisite service as required under the Acts. The Tribunal determined that it did not have jurisdiction to hear the claim under the Acts.


Legal Review

Section 2(1) of the Acts lists those employees excluded from its protection. For the Acts to apply, an employee must, at the date of dismissal, have at least 52 weeks continuous service with the employer.

However, this continuous service requirement does not apply to employees who are dismissed by reason of:

1) Trade union membership or activity;
2) Pregnancy or the exercise of their rights under the Maternity Protection Acts 1994 – 2003; or
3) The exercise of their rights under the National Minimum Wage Act 2000, and in certain cases under the Safety, Health and Welfare at Work Act 2005.

Certain types of contracts are also excluded from the application of the Acts. In this case, the employee was employed under a fixed-term contract. Under Section 2(2) of Acts, an employee engaged under a fixed-term or specified purpose contract will not be protected where the employment relationship ends as a result of the expiry of the contract.

However, in order for such contracts to be excluded from the remit of the Acts, the following conditions must be complied with:

1) The contract must be in writing;
2) It must be signed by both parties; and
3) It must contain a statement to the effect that the Acts shall not apply to a dismissal resulting only from the expiry of such a contract. In Sheehan v Dublin Tribune [1992] ELR 239, the employer did not include such a clause and the contract could not be excluded from the application of the Acts.

However, employers should be aware that successive fixed-term contracts cannot be used to avoid their obligations under the Acts. The Tribunal will seek to determine whether the contracts was actually intended to be for a fixed-term or if, in reality, it was an open-ended arrangement designed to avoid the application of the Acts.