FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1); PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT; 2003 PARTIES : GATE GOURMET IRELAND LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - PIOTR DLUGOSZ (REPRESENTED BY POLISH CONSULTANCY ENTERPRISE) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr O'Neill |
1. Appealing against a Rights Commissioner’s Decision r-087582-ft-09/DI.
BACKGROUND:
2. This is a double appeal by the parties to the Labour Court under Section 15(1), of the Protection of Employees (Fixed -Term Work) Act, 2003 of the Decision of the Rights Commissioner. The Labour Court hearing took place on the 18th November, 2010.
DETERMINATION:
This is an appeal by both Mr. Piotr Dlugosz (“the Complainant”) and Gate Gourmet Ireland Limited (“the Respondent”) against the Decision of a Rights Commissioner which found that the Respondent was in breach of Section 8 of the Protection of Employees (Fixed-Term Work) Act 2003 (“the Act”) and awarded the Complainant the sum of €1,500.00 compensation.
The claim was referred to the Rights Commissioner on 25th November 2009, which was in excess of six months since the effective date of the renewal of the last fixed-term contract issued to the Complainant, however, he allowed an extension of the time limit provided under Section 14 (3) due to the reasonable cause shown. The Rights Commissioner accepted that since the contract was not signed until 15th September 2009, that the Complainant had demonstrated “reasonable cause” as provide for in Section 14 (4) of the Act.
At the Rights Commissioner hearing the Complainant claimed that the Respondent had failed to provide him with written statement setting out the objective grounds justifying the renewal of his fixed-term contract and its failure to offer him a contract of indefinite duration in accordance with Section 8 of the Act. He also referred a complaint under Section 10 of the Act alleging that the Respondent has failed to inform the Complainant of any permanent vacancies or to facilitate him with access to appropriate training opportunities to enhance his skills, career development and occupational mobility. The Rights Commissioner made no decision on the Section 10 claim.
The Respondent informed the Court that as it had not been informed of the date or time of the Rights Commissioner’s hearing it was accordingly unable to attend.
Background
The Complainant was employed as a General Assistant/Kitchen Porter. His employment commenced on 3rd April 2007 and terminated on 31st October 2009. His first written fixed-term contract was issued to him on 22nd June 2007, with effect from 4th April until 31st of October 2007. He was continued in employment and the second fixed-term contract was furnished to him on 3rd November 2008 until 30th April 2009. Again he continued in employment and the third contract was signed on 15th September 2009, with effective dates from 1st of May 2009 until 31st of October 2009.
The Complainant’s Case
Mr. Blazey Nowak, Polish Consultancy Enterprise, on behalf of the Complainant held that there was no necessity to extendthe six-month time limitprovided under Section 14 (3) as he maintained that the claim was referred to the Rights Commissioner in time. He contended that the contravention of the Act under Section 8 occurred on 15th September 2009 when the Complainant was issued with his last fixed-term contract of employment.
Mr. Nowak alleged that the Respondent had failed to provide the Complainant with a written statement setting out the objective grounds justifying the renewal of his fixed-term contract and its failure to offer him a contract of indefinite duration in accordance with Section 8 of the Act.
He also alleged that the Respondent had failed to inform the Complainant of any permanent vacancies or to facilitate him with access to appropriate training opportunities to enhance his skills, career development and occupational mobility.
The Respondent’s Case
Mr. Tim O’Connell, IBEC on behalf of the Respondent, submitted that the Rights Commissioner erred in allowing an extension of time under the Act, stating that the contract signed on 15th September 2009 was the second contract issued to the Complainant for that period as he had failed to sign the first copy issued to him at the commencement of the contract on 1st of May 2009. Hence,the time limit should run from 1st May 2009 and not 15th September 2009, accordingly, the Complainant was out of time and the Rights Commissioner had no jurisdiction to hear the case.
Without prejudice to the foregoing the Respondent submitted that the breach of Section 8 (2) was a technical breach and contended that the Complainant was not prejudiced or disadvantaged by the Respondent’s failure to provide a written reason for issuing a new fixed-term contract.
The Respondent appealed the quantum of the award decided by the Rights Commissioner.
Mr. O’ Connell denied that the Respondent was in breach of Section 10 of the Act. He stated that the Complainant had received appropriate training for the duties he performed. He told the court that vacancies are notified internally, when they arise, on notice boards in the canteen and on the shop floor, which all employees have the opportunity to read. The Complainant was not denied any opportunities by reason of his fixed-term status.
Findings of the Court
The Court is satisfied that the complaint was referred to the Rights Commissioner in time. A written fixed-term contract of employment was supplied to the Complainant on 15th September 2009, which did not contain particulars required by Section 8 (2) of the Act. These are mandatory provisions and whether the Respondent was issuing a second copy of the contract or not, the contract still did not contain a
written statement setting out the objective grounds justifying the renewal of the fixed-term contract and did not specify why the Respondent was not offering him a contract of indefinite duration. For that reason the Court finds that the Respondent was in breach of Section 8(2) of the Act.
Section 10 (1) places an obligation on an employer to inform a fixed-term employee of vacancies, which become available, to ensure that he or she shall have the same opportunity to secure a permanent position as other employees.Section 10 (2) states that the information may be provided by means of a general announcement at a suitable place in the undertaking or establishment.In this case, the Court is satisfied that the Respondent placed notices of vacancies in a prominent position in the workplace, to which the Complainant had access.
The Act states at Section 10 (3) that as far as practicable, an employer shall facilitate access to fixed-term employees to appropriate training opportunities to enhance his or her skills, career development and occupational mobility.
The Respondent gave details to the Court of the training provided for the Complainant in the course of his duties; this was not disputed by the other side. The Complainant made specific reference to fork-lift training which was provided for a permanent member of staff, which he held should have been provided to him. In response, the Respondent told the Court that one worker employed as a driver was provided with training on operating a fork-lift, when he was offered alternative employment as there was no longer a need for a driver.
From the submissions made by both parties the Court is satisfied that the Company notified all workers including the Complainant of staff vacancies as they arose and provided all necessary training to him and accordingly there was no breach of Section 10 (1), (2) or (3) of the Act.
In all the circumstances the Court does not accept that the Respondent failed to meet its obligation under Section 10 of the Act in relation to the Complainant.
Redress
The Court finds the appropriate redress for the contravention of Section 8(2) is an award of compensation. The Court measures that the amount which is fair and equitable in the circumstances at €1,500.00 and accordingly concurs with the findings of the Rights Commissioner on that point. An award in that amount is made in favour of the Complainant none of which award pertains to loss of earnings.
The Rights Commissioner's Decision is amended in accordance with the terms of this Determination.
Signed on behalf of the Labour Court
Caroline Jenkinson
13th December, 2010______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.