FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : CENTRAL STATISTICS OFFICE (CSO) - AND - MICHAEL DALTON DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of a Rights Commissioner's Decision R-043308-Ft-06/JC.
BACKGROUND:
2. The issue involves a claim by Census Field Supervisor, Mr Michael Dalton, in relation to a Fixed-Term Contract while he was employed by the CSO for the Census of Population 2006. The matter could not be resolved at local level and was referred to a Rights Commissioner for investigation and Recommendation. On the 21st September, 2007, the Rights Commissioner issued her Recommendation as follows:
"In all the circumstances I find that the termination of his fixed term contract of employment did not constitute less favourable treatment than the named permanent comparator.
I declare that the complaint is not well founded and I find against it".
On the 22nd October, 2007 Mr. Michael Dalton appealed the Rights Commissioner's Recommendation to the Labour Court 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 February, 2008.
DETERMINATION:
This is an appeal by Mr. Michael Dalton (the Complainant), against the Decision of a Rights Commissioner in which she found against the Complainant in a claim under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). At the Rights Commissioner hearing the Complainant argued that CSO (the Respondent) contravened Section 6 of the Act when he was treated less favourably than a permanent comparable employee.
Mr. Michael Dalton was employed as a Census Field Supervisor by the CSO for the Census of Population 2006. His contract of employment was effective from 16th January 2006 to terminate “not later than 16th June 2006”. Clause 4 of the contract stated “ the appointment may be terminated at any time by either side in accordance with the Minimum Notice and Terms of Employment Acts, 1973 and 1991". His contract came to an end on 9th June 2006, the Complainant stated that he did not receive notice of termination and consequently he was treated less favourably than a comparable permanent employee.
The Complainant nominated a named comparator, who works as an Officer of Statistics with the CSO.
Mr. Stephen Byrne, B.L., Counsel for the Respondent, denied that he was treated less favourably than a comparable permanent employee. He contended that the statutory framework for determining this issue is the Minimum Notice and Terms of Employment Acts, 1973 and 1991. In any event, he stated that the Complainant was given due and proper notice on 2nd June 2006. He also submitted that the individual offered by the Complainant as a comparator was not a proper comparator for the purposes of the relevant statutory provisions, as the work is qualitatively and quantitatively different. He held that the Complainant’s employment by its very nature is finite and for a limited duration, it is only available to full-time temporary employees every number of years. His contract of employment was specified from the outset, and stated that it would terminate “no later than 16th June 2006”.
The Law
Conditions of employment for fixed-term employees
Section 6. - (1) "Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee."
The term “comparable permanent employee” is defined by section 5 of the Act. Section 5(1)(a) provides:
- the permanent employee and the relevant fixed-term employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,
Section 5(2) provides:
The following are the conditions mentioned in subsection (1)—
- (a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,(b) the work performed by one of the employees concerned is of the same or of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and
(c) the work performed by the relevant fixed-term employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical ormental requirements, responsibility and working conditions.
The combined effect of these provisions is that a comparable permanent employee for the purposes of the Act is a permanent employee employed by the same employer as the complainant, who is engaged in like work with the complainant.
It is for the complainant to choose his or her comparator provided they meet the statutory criteria. The only test is whether the complainant and the comparator are engaged in like work. The purpose of a comparator under the various statutes dealing with discrimination is to demonstrate if a higher value is placed on the same or similar work as that performed by the complainant when it is performed by another employee having a different gender, characteristic, or status, as the case may be. Hence the determinative considerations are the nature of the work being performed by the two and that one is in a protected category and the other is not.
It is clear to the Court that the provision of notice to both the Complainant and the comparator was governed in the same fashion, i.e. by contractual and statutory terms. However, no evidence has been adduced to show how a comparable permanent employee whose employment was terminated by the Respondent was treated any differently. The named comparator continues to be employed, consequently she cannot be considered as an appropriate comparator.
Conclusions of the Court
Having considered the matter, the Court is of the view that by its very nature the duration of the contract of employment was a definitive one, however, it was clear that in the event of its termination earlier than 16th June 2006, the terms of the Minimum Notice of Employment Acts, 1973 and 1991, would apply. This required the Respondent to give the Complainant one week’s notice of termination of employment. The Respondent by its own admission stated that such notice was tendered, however, the Complainant maintained that he did not receive the notice until its expiry date.
The Court is of the view that the real issue is in substance a complaint under the Minimum Notice and Terms of Employment Act, 1973. This Court has no jurisdiction to hear claims under that Act and therefore cannot hear evidence pertaining to its alleged contravention. The Court is of the view that it would be inappropriate to hear a claim for outstanding notice under the guise of the 2003 Act.
Determination.
For all of the reasons set out in this Determination the Court is satisfied that the complaint herein is not well-founded. The appeal herein is not allowed and the Decision of the Rights Commissioner is upheld.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
25th March, 2008.______________________
JF.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.