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WRC Awards losses into the future for unfair dismissal claim for non-renewal of fixed term worker due to pregnancy

FACTS: The Complainant was employed by a crèche as a childcare worker to work part time hours on a fixed term contract for 38 weeks which commenced on 4th September 2017 to 29th June 2018. The contract clearly stated the term of the contract but failed to insert the clause that the Unfair Dismissals Act will not apply to the termination of employment by reason of expiry of the term.

There was never any issues with the Complainant’s work. She informed the Respondent in January 2018 that she was pregnant. She was then diagnosed with a pregnancy related illness, which meant that she was restricted in some times that she could work. The Complainant’s contract was not renewed and she was not given any reason for the non-renewal of her contract. She enquired about summer work but was informed by the Respondent that they had enough staff as the numbers would be down during the summer. The Complainant was told that she could reapply for work the following September but she was due to have her baby in September. There was numerous advertisements for roles in the Respondent’s two crèches for full and part time work in the months following the expiry of the Complainant’s fixed term contract.

The Complainant had to take maternity leave early in order to get maternity payment from the State and started her maternity leave on 30th June 2018, the day after her dismissal. Her maternity leave expired on 14th January 2019.

FINDING: The WRC Adjudicator, Davnet O’Driscoll, found that as the Complainant’s contract did not have the clause excluding the application of the Unfair Dismissal Act for termination due to the expiry of term of the contract and as the non-renewal was due to pregnancy, the Unfair Dismissal Act applied regardless of the Complainant only having 38 weeks service. The Adjudicator awarded the financial loss from the date her maternity leave finished for a period of six months which was beyond the loss to the date of the hearing. The Adjudicator took into account the amount of time that the Complainant will take before she finds alternative employment.

The Adjudicator also awarded pay in lieu of the annual leave and public holiday which the Complainant would have received payment for if she had not been dismissed and an additional amount for failure to inform the Complainant of the vacancies for permanent employment.

TAKEAWAY FOR EMPLOYERS:  This case illustrates the importance of including the clause that excludes the application of the Unfair Dismissal Act where the employment is terminated by reason of the expiry of the term in every fixed term contract regardless of how short the term of the contract. It also illustrates the importance of setting out in writing the reasons for the non-renewal of a fixed term contract, particularly where a potential discrimination claim may be raised.

https://www.workplacerelations.ie/en/cases/2019/august/adj-00016913.html

30th August 2019

Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2.

www.aocsolicitors.ie

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