The Gazette 1987

GAZETTE

JULY/AUGUST 1987

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,

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

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.

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

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,

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).

Cowman

-v- Bon Voyage Travel Limited,

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,

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

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

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,

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.

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