The Gazette 1987

GAZETTE

JULY/AUGUST 1987

to do a specific job and he spent time doing other work, it may render the contract not to be for a genuine purpose, the effect being that the employee may well fall within the scope of the Act if he has the requisite 52 weeks service. Of course, an employer would well use the defence of redun- dancy if a claim is brought for unfair dismissal following the non- renewal of a second or subsequent contract (this is assuming the employee has the requisite 52 weeks service to fall within the scope of the Unfair Dismissals Act, 1977). Further an employer could be liable for redundancy payment if the employee has 104 weeks continuous service and there is a redundancy situation on the expiry of a fixed term contract (section 7, Redundancy Payments Act, 1967). The maternity legislation will not apply to female employees who work under a fixed term contract for either less than 26 weeks or of which there are less than 26 weeks to run at the date of taking ma t e r n i ty leave, (section 1, Maternity Protection of Employees Act, 1981). Temporary Officers Officers of health boards, local authorities and so forth are exluded from the scope of the Unfair Dismissals Act (Section 2(1) (j)). Problems arise in the case of temporary doctors and nurses in the health boards as they are deemed officers. Western Health Board -v- Quigley, 28 highlighted the problems associated with tem- porary officers in health boards. Mrs. Quigley was a statutory regis- tered psychiatric nurse who was appointed a temporary staff nurse in 1974. In October, 1974 she was notified that her temporary employ- ment was being extended up to 31 December 1974. She received no further communication but con- tinued to work up to November, 1977 when she received a notice terminating her temporary employ- ment on 31 December, 1 977. She considered that she was unfairly dismissed and brought a claim to the Tribunal who awarded her re- instatement which decision was affirmed on appeal by the Circuit Court.

supported by the fact that she paid the J2 rate of PRSI, a rate payable by employees working less than 18 hours per week. In Edwards -v- Aeria/s & Electronics (Ireland) Limited, 20 it was held that as both employer and employee could not provide evidence as to hours work- ed — the hours worked were deemed indeterminate and the claim failed. Employees who are 'on-call' may fall within the scope of the legisla- tion, for example, in Bartlett -v- Kerry County Council , 21 the clai- mant was employed as a part-time fireman with no specific hours of work — by virtue of being 'on-call' for at least 21 hours per week he fell within the scope of the Unfair Dismissals Act, 1977. See also Gormley -v- Leitrim County Coun- cil. 22 Continuity Assuming a 'temporary' worker is an employee and wo r ks the requisite hours, the next con- ideration is continuity of service. Two claims under the Unfair Dismissals Act are wo r th considering — the rules for continuity are contained in the First Schedule to the Minimum Notice and Terms of Employment Act, 1973 — in Broderick -v- Victor Hotel 20 a perennial problem arose, 'is there a dismissal or not?' A seasonal employee was considered to have continuous service as she was laid off during the winter season. She was laid off at the end of a winter season and claimed she was dismissed. It was held that she had continuity but there was no dismissal as she was still on lay- o f f . Thus, she was still an employee and not entitled to claim under either Act. Under the continuity rules, there is no break in continuity if there is a dismissal followed by immediate re-employment by the employer. This rule was applied in Roscrea Meat Products Limited -v- Mull ins and Others, 2 * where temporary workers claimed unfair dismissal. The company argued they were only hired from time to time, and each time their service was broken. It was held they had continuity as looking at the pattern of their employment, they were seasonal employees. A seasonal employee may also have continuity for the purposes of

redundancy, wh i ch rules are contained in the Third Schedule of the Redundancy Payments Act, 1967 (as amended). 25 In Cowman -v- Bon Voyage Travel Limited, 20 a seasonal employee for 10 years wi th authorised absences and periods of lay-off was entitled to a redundancy payment on the basis of her continuous reckonable service. Fixed Term Contracts The Unfair Dismissals Act, 1977 (section 2(2)(b)) provides that the Act does not apply to the non- renewal of a fixed term or a specified purpose con t r ac t, provided the contract is in writing, signed by both parties and it is stated that the Act will not apply to the termination of the contract. The main area of concern is what is the position on the non-renewal of a second or subsequent fixed term contract. From an employer's viewpoint the position is unfortun- ate as it may be concluded that the Tribunal would view the periods of employment as continuous and unless there is good reason for termination of employment (or non- renewal of the contract), it would be held to be an unfair dismissal. Thus, employers may not use the device of fixed term contracts to avoid this legislation. It is worth quoting the views of the Tribunal in the case of Fitzgerald -v- St. Patrick's College, 21 which claim was based on the non-renewal of a fixed term contract. The contract had been renewed twice before this — 'if the mere expiry of a fixed term contract of employment were to be regarded as a substantial ground for the non-renewal of employment, the Unfair Dismissals Act, 1977 could be rendered abortive in many cases. An employer could side step its pro- visions by emp l oy i ng his employees on fixed term contracts only. Then, to get rid of an employee, on whatever grounds, be they trivial or substantial, fanci- ful or solid, fair or unfair, he need only wait until that employee's fixed term contract expired, and then refuse to renew it'. Specified purpose contracts which are entered into in order to complete a special project (for example) must be viewed cautiously also, for example, if an employee were employed

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