FULL RECOMMENDATION
SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : DEPARTMENT OF FOREIGN AFFAIRS - AND - MARY BROWNE PATRICIA VICKERS DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal against a Rights Commissioners Decision FT18670/04/JH.
BACKGROUND:
2. The complaint concerns the non application to the claimants of the settlement terms reached between the CPSU and the Department of Finance in respect of a group of Civil Servants, known as the Paper Keeper Agreement. This agreement was signed as a legal agreement on the 20th November 2003. It is the claimants case that they were excluded from the terms of the agreement on the grounds of their status as Fixed Term Workers. They further claim that the reason for their exclusion from the Agreement was that (i) they did not have continuous service or (ii) they did not sign a claim form in 1997. On the latter point the claimants states that they did sign the form for the purpose of lodging an equal pay claim in 1997 and gave them to their local representatives.
The matter could not be resolved at local level was referred to a Rights Commissioner for investigation and decision. The Rights Commissioner decision issued on the 5th April, 2005. In the case of Mary Browne the Rights Commissioner decidedI find that the exclusion of Mary Browne from the terms of the agreement known as the Paper Keeper Agreement was for reasons unrelated to her status as a fixed term employee. I find that Mary Browne does not therefore have a valid complaint under the Protection of Employees Fixed Term Work Act, 2003.
In the case of Patricia Vickers the Rights Commissioner decided that"On the 14th July, 2003 the claimant (retired December, 2002) was not in fact a fixed term worker on that date, she cannot have a case under the Protection of Employees Fixed Term Work Act, 2003 and it follows cannot have a complaint well founded or otherwise under the Act".
On the 10th May, 2005, the two workers appealed the Rights Commissioner’s decision in accordance with Section 15(1) of the Protection of Employees (Fixed Term Work) Act, 2003. A Labour Court hearing took place on the 21st July, 2005.
DETERMINATION:
Ms Mary Browne is employed by the Department of Foreign Affairs as a Clerical Officer on a fixed term contract. She has broken service in that capacity since 1992. Ms Patricia Vickers commenced employment with the Department as a Clerical Officer in 1990. She served on a succession of fixed term contracts up to January 2000, when she became permanent. Ms Vickers retired in December 2002.
Both claimants contend that they were discriminated against on grounds of their status as fixed-term employees in being excluded from the benefit of an agreement reached between the Department of Finance and CPSU in settlement of an equal pay claim brought by the Union on behalf of Clerical Officers / Clerical Assistants. The agreement in question was concluded on 20th November 2003 and monies due in accordance with its terms were paid shortly thereafter. According, for the purpose of these claims the operative date of the occurrence alleged to constitute an infringement of the Act was 20th November 2003.
The settlement encompassed two categories of Officers in the affected grades, namely:
- Those who had filed claims under the Anti- Discrimination (Pay) Act 1974 on or before 30th April 1998, and
- Those serving as Clerical Officer or Clerical Assistant on 31st October 1997 and who had continuous service in that capacity up to 16th May 2003.
Both claimants made careful and reasoned submissions on what they regard as the inequity surrounding their exclusion from the benefits of the settlement agreement. The Court may have a degree of sympathy for the claimants having regard to the circumstances in which they came to be outside the scope of the agreement. Nonetheless the Court’s only function in the present case is to establish whether or not the claimants were denied the payments which they claim by reason of being fixed-term employees.
Ms Browne’s Claim.
Ms Browne’s fixed term contract expired on 24th October 1997 and she was not re-engaged until 14th January 1998. She was not, therefore, serving on 31st October 1997. Ms Browne recalls having signed a form for the purpose of making a claim under the 1974 Act, which she gave to her local CPSU representative. However this claim was never lodged with the Equality Service of the Labour Relations Commission. Hence, Ms Browne did not meet either of the criteria for inclusion in the settlement. The Court is satisfied that it was this failure to meet the prescribed criteria, and not her status as a fixed-term employee, which caused Ms Browne to be excluded from benefiting under the agreement.
Ms Vickers Claim.
Ms Vickers also has a clear recollection of having completed a form for the purpose of lodging an equal pay claim in 1997. This form, she recalls, was given to her CPSU representative for forward transmission to the appropriate authority. As in the case of Ms Browne there is now no record of the claim having been lodged. Accordingly Ms Vickers does not meet the first criterion for payment under the agreement.
Ms Vickers ceased to be a fixed-term employee on being made permanent in 2000. She retired in December 2002. The Act commenced on -14th July 2003. On the operative date of the occurrence alleged to contravene the Act (November 2003), Ms Vickers was not a fixed-term employee. It follows that the failure of the respondent to include Ms Vickers in the monetary terms of the agreement could not have been on grounds of her status as a fixed-term employee.
Conclusion.
The Court is satisfied that the respondent did not contravene section 6 of the Act in relation to Mary Browne or Patricia Vickers. Accordingly, the decision of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
8th_August, 2005______________________
JBChairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.