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In a recent decision from the  Labour Court ( AKINA DADA WA AFRICA v CLAUDIA HOREAU)  in January 2021, the question arose as to whether there was an actual contract of employment in place at the date of dismissal. The employee argued that that she was still an employee even after her fixed term contract expired as she was on maternity leave. Her fixed term contract was for a period from 1 January 2015 to 31 December 2016 however the employee was on maternity leave until June 2017.

The Labour Court observed “On a literal reading, s. 10(2) of the Maternity Protection Act 1994 makes clear that the fact that an employee is on maternity leave does not have the effect of altering the expiry date of the contract itself. This is consistent with the ruling in Melgar v.Ayuntamiento de Los Barrios C-438/99 (2001) E. C. R. 1-6915,which interpreted the application of Council Directive 92/85 EEC of 19 October 1992. A relevant case in Irish case law is that of McBrierty v N.U.I. Galway EDA 091,which held that the non renewal of a fixed term contract of a pregnant employee cannot be regarded as a dismissal within the meaning of the Directive”.

The Labour Court stated that it was a legal fact that the Complainant’s maternity leave had no effect on the expiry of her employment contract on 31 December 2016 however it considered what happened post this date to determine if the contract was extended. The Respondent in this case accepted that they continued to believe that the contract was extended by virtue of the complainant’s maternity leave and had in fact communicated with her as if she was an employee between 1 January 2017 and June 2017.

The question for the Court was whether, by their actions, the Respondent gave effect to an extension of contract, notwithstanding their wishes. The contract expired in law on 31 December 2016 and can only have been extended if the actions of the parties created such a continuation.

The Labour Court observed “It seems self-evident to the Court that the Respondent did not seek to extend the contractual relationship any longer than they believed was required of them………… it is noteworthy that the Respondent ceased to communicate with the Complainant as if she was still an employee after her maternity leave expired and also that the date given by them in the P.45 as the final date of employment was in June 2017, when the Complainant’s maternity leave ended, (albeit on a date that was incorrect by a few days)”. It observed that there did appear to be an extension of the Complainant’s contract.

The Labour Court concluded that as the Complainant’s resignation took place after the end of her maternity leave, she was not in fact an employee of the Respondent. It concluded that A dismissal, constructive or otherwise, can occur only when there is an employment relationship. If there is no such relationship, neither the Workplace Relations Commission nor this Court has jurisdiction to hear a claim under the Unfair Dismissal Acts”.