FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : MAYO COUNTY COUNCIL (REPRESENTED BY LGMSB) - AND - MR GERRY WALSH (REPRESENTED BY CATHY MAGUIRE B.L. INSTRUCTED BY THOMAS J. WALSH SOLICITOR) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appeal of Rights Commissioner's Decision r-047700-ft-06/JT
BACKGROUND:
2. This case concerns a double appeal of Rights Commissioner's Decision r-047700-ft-06/JT. The issue in dispute concerns a worker employed by Mayo County Council who claims to have been entitled to a contract of indefinite duration on the basis of having satisfied the qualifying criteria set out under the legislation.
The dispute was referred to the Right's Commissioner for investigation. His Decision issued on the 14th July 2008 and was appealed by the worker on the 6th August, 2008 and by the employer on 13th August, 2008 in accordance with Section 15(1) of the Protection of Employees (Fixed-Term Work) Act, 2003. A Labour Court hearing took place on 20th October, 2009.
The following is the Court's Determination:
DETERMINATION:
This is an appeal by both Mayo County Council (the Respondent) and Mr. Gerry Walsh (the Complainant) against the decision of a Rights Commissioner r-047700-ft-06/JT in a claim under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act).
The substance of the Complainant’s claim is that he became entitled by operation of law in accordance with the provisions of Section 9(3) of the Act to a contract of indefinite duration on 5th February 2007. He claims that this entitlement arose from having completed more than four years continuous fixed-term employment at this point and in the absence of objective grounds justifying the failure to offer him a contract of indefinite duration.
The Complainant further claims that the Respondent breached Section 6 of the Act in failing to afford him the same terms and conditions of employment as comparable permanent employees.
The Complainant also claimed that the contract of indefinite duration he was offered on 23rd March 2007 was at a lower grade, on a lower pay scale and with a lesser level of authority than he had previously enjoyed as a fixed term worker and that these facts amounted to penalisation within the meaning ascribed to that term under Section 13 of the Act.
The complaint was made to a Rights Commissioner on 24th November 2006. In his decision dated 14th July 2008 the Rights Commissioner did not accept that the comparator nominated by the Complainant was a valid comparator and consequently made no finding under Section 6 of the Act. He found that while the Respondent issued the Complainant with a contract of indefinite duration with effect from 23rd March 2007 pursuant to Section 9(3) of the Act, however, as the Complainant had at that stage been compelled to make efforts to obtain his rights under the Act, he decided to award him compensation for the delay, in the amount of €8,000.
It is against that decision that the Respondent appealed to this Court.
The Complainant also appealed the decision, on the basis that the Rights Commissioner failed to find that he was treated less favourably than a comparable permanent employee and in failing to find that he had been penalised for asserting his rights under the Act.
Background
The Complainant was employed by the Respondent on a temporary basis from 1988 until 1990. He was re-employed on a succession of fixed-term contracts from 1992 until 2007 on the following grades: -
Archaeologist Grade III (Basic Grade) 1989 – 1990
Archaeologist Grade III (Basic Grade) 1992 – 1998
Senior Archaeologist Gr II (min of scale) 1998 – 2001
Senior Archaeologist Gr II (max of scale) 2001 - 2006
Senior Archaeologist Gr II (max of scale) 2006 - 2007
The final fixed term contract expired on 5th February 2007.
On 23rd March 2007 the Respondent offered the Complainant a contract of indefinite duration, backdated to 6th February 2007.
Conclusions of the Court
The Court brought to the attention of the parties the fact that the date the claim was referred to the Rights Commissioner (24th November 2006) predated any alleged breach of the Act.
The Court also asked the parties to address the circumstances in which the Complainant ceased to be a fixed-term employee and as such whether he could rely on the Act to securemorefavourable conditions of employment than when a fixed-term employee. The Court also asked Counsel for the Complainant whether he could avail of the Act concerning his claim of demotion/less favourable conditions of employment.
Having considered the matters raised by the Court, Counsel on behalf of the Complainant withdrew the Complainant’s appeal and informed the Court that the Complainant would not be contesting the Respondent’s appeal of the Rights Commissioner’s decision to award €8000.00.
Determination:
The Court, accordingly, dismisses the Complainant’s appeal, and upholds the Respondent’s appeal. The Decision of the Rights Commissioner is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
26th November 2009______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.