FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : UNIVERSITY COLLEGE CORK (REPRESENTED BY ARTHUR COX SOLICITORS) - AND - DR. INGE NIEUWSTRATEN (REPRESENTED BY IRISH FEDERATION OF UNIVERSITY TEACHERS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner’s Decision r-092483-ft-10/JOC.
BACKGROUND:
2. The Respondent appealed the Rights Commissioner's Decision to the Labour Court on the 20th December, 2010. A Labour Court hearing took place on the 11th May, 2011. The following is the Labour Court's Decision:-
DETERMINATION:
This is an appeal by University College Cork against the Decision of a Rights Commissioner in relation to a complaint by Dr. Inge Nieuwstraten under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). At the Rights Commissioner hearing the Complainant argued that University College Cork contravened Section 6 of the Act when she was treated less favourably than a comparable permanent employee.
The Rights Commissioner found in favour of Dr. Nieuwstraten and decided that she should be paid severance terms in the amount of six week’s pay per year of service inclusive of the statutory redundancy entitlement. No award of compensation was made.
In this Determination the parties are referred to as they were at first instance. Hence University College Cork, which is the appellant, in this case, is referred to as “the Respondent”. Dr. Inge Nieuwstraten who is the respondent herein is referred to as “the Complainant”.
Background
The Complainant was employed on a fixed-term contract as a part-time Lecturer in Speech and Hearing Sciences between 18th September 2006 and 17th September 2009. However, when the Complainant was furnished with this contract she had already been employed with the Respondent on a permanent basis as a Lecturer in the Department of Applied Psychology since 26th September 2005 and she continues to be employed on that basis in a part-time capacity.
On 18th March 2010 the Complainant referred a claim under the Act to the Rights Commissioner, alleging that she was treated less favourably than a comparable permanent employee when she was paid statutory redundancy payments only instead of a more enhanced severance terms which applied to valid comparators, contrary to Section 6(1) of the Act, (the fact of redundancy was not in dispute).
Preliminary Issue
The first issue the Court must consider is whether the Court has jurisdiction to hear the case i.e. does the Complainant havelocus standito maintain the within claims, this is dependent on her falling within the definition of fixed-term employee as set out in Section 2 of the Act.
Statutory Provision
The Act was enacted to give effect to Ireland’s obligations under Directive 99/70/EC concerning the framework agreement on fixed-term work. The object of the Directive is to provide for the application of the principle of equal treatment to fixed-term workers and to introduce measures to prevent the abuse of successive fixed-term contracts of employment.
Section 2 of the Act defines a fixed-term employee as follows: -
- ‘‘fixed-term employee’’ means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include—
(a) employees in initial vocational training relationships or
apprenticeship schemes, or
(b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational
retraining programme;
The question before the Court is whether or not the Complainant is entitled to rely on the provisions of the Act in respect of that portion of her duties which she performed under a fixed-term contract. There was no dispute between the parties that the Complainant is on a permanent contract. That contract commenced on 26th September 2005 and will terminate on her 65th Birthday, when she will be entitled to avail of a pension in accordance with the Respondent’s scheme. The Court is of the view that the duties she carried out under the fixed-term contract were extra duties she was required to perform and as such were inextricably linked to her status as a permanent employee.
The Court finds that the Complainant was on a permanent contract of employment at the time she made her complaint to the Rights Commissioner on 18th March 2010 and therefore had nolocus standito maintain the complaint.
Accordingly, the Court is satisfied that it has no jurisdiction to hear the complaint.
Signed on behalf of the Labour Court
Caroline Jenkinson
20th July, 2011______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.