FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : BORD GAIS EIREANN (REPRESENTED BY BORD GAIS EIREANN) - AND - SZYMON CIMEROWSKI DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal against a Rights Commissioner's Decision R-092151-FT-10/TB.
BACKGROUND:
2. The Employee appealed the Rights Commissioner's Decision 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 21st October, 2011. The following is the Court's Determination:
DETERMINATION:
The dispute comes before the Court pursuant to Section 15(1) of the Protection of Employees (Fixed Term Work) Act 2003
The Complainant contends that contrary to the provisions of Section 6 (1) of the Act he was treated in a less favourable manner in respect of his conditions of employment that a comparable permanent employee.
Section 6 (1) of the Act provides
- 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.
Section 10 provides
- (1)An employer shall inform a fixed-term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees
Finally, the Complainant contends that he was penalised contrary to the provisions of Section 13 of the Act.
The relevant parts of Section 13 provide
—(1) An employer shall not penalise an employee—
- (a)for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part
(b)for having in good faith opposed by lawful means an act which is unlawful under this Act
(a) is dismissed or suffers any unfavourable change in his or her conditions of employment or any unfair treatment (including selection for redundancy), or(b) is the subject of any other action prejudicial to his or her employment.
The Complainant contends that he was dismissed from his employment for having opposed the unlawful manner in which his employer was discriminating against him.
Background:
The Complainant commenced working for the Respondent Company as a Computer Aided Drafting/Geographic Information System Technician, on 18thApril 2007. He was employed on three successive contracts of employment. Those contracts were for the following periods: -
First Contract 18thApril 2007 - 18thApril 2008
Second Contract 18thApril 2008 - 17thApril 2009
Third Contract 18thApril 2009 – 18thDecember 2009
The Complainant’s contract of employment was not thereafter renewed.
Complainant’s Case:
The Complainant contends that he was employed into the Network Services Department of Bord Gais Eireann and was assigned to various duties over the course of his employment. He contends that one of those assignments involved him working on projects designed to improve safety in the transport of compressed gas. This involved him working on various teams reporting through several different channels over the lifetime of the project. However, he contends that at a particular point he was removed from those projects and confined to work related to the “accelerated renewals programme” in preparation for his eventual dismissal from the Company. He contends that having so confined him to such work he was dismissed on the grounds that his Contract had come to an end and his services were no longer required. He contends that this was contrived, was contrary to his contract of employment and was contrary to the provisions of Section 6(1) of the Act.
He submits that he was physically isolated from other the staff in the GIS Office. He submits that his working conditions were cramped and unsuitable and not conducive to the performance of his work. He submits that he could not stretch his legs as there was a wall restricting his movement. He also submits that two other computers were placed on his desk that belonged to another department that reduced the space available for him to work in. He submitted that he raised this issue with his superiors on a number of occasions to no avail.
He submits that he applied for various positions within Bord Gais Eireann to no avail. He submits that this amounted to a policy not to appoint him to a permanent position.
He submits that contrary to the terms his contract of employment he never received a Performance Review of his work in the Company. He submits that this deprived him of the opportunity to get honest feedback on his performance that would have enabled him to address any shortcomings he may have had and to identify the skills training needs he had in order to better perform his work and to improve his employment prospects and mobility.
He submits that he was denied access to training courses contrary to the provisions of the Act. He submits that he applied for a training course in 2D and 3D Computer Aided Design Software. He said he was refused access to this course on the grounds that he was a fixed-term worker.
He submits he applied for a course in Advanced Business English. He submits that he was again refused because he was a fixed-term worker.
He submits that he applied for a course in CNG/Biogas Training. He was refused access to this course also.
He submits that when the Chief Executive Officer set up a team to advance a recently established CNG/Biogas project he was invited to participate in it but was refused permission to do so by his manager. He submits that this prevented him gaining his skills and experience that would improve his employment prospects and labour mobility.
He submits that he applied for a Safe Pass Course and was refused as the course was fully booked.
He submits that he applied for inclusion on a course designed to promote the concept and practices of a Green Company. He submits that he applied for funding for a post graduate course in DIT to undertake related studies but never received an answer to his request.
He submits that the Respondent Company at no time engaged with him on his educational or training needs contrary to the provisions of the Act.
He submits that in 2008 he was located in a new office away from his colleagues in the GIS Department. He submits that he established that the maps available in the Company did not contain details of the location of pipes and other elements of the network’s infrastructure including valves etc. He submits that he developed proposals to address this including processes that would save money, time and in some situations even save lives. He submits that he was reprimanded and instructed to stop dealing with this issue and to concentrate on the work he had been assigned by his Manager.
He submits that in June 2009 he developed a proposal to improve the GIS information database to more accurately record the location and nature of internal gas installations. He submits that he was approved to undertake this work by his Manager a Mr Brendan O’Shaughnessy. He submits that after this work was nearly complete he needed assistance with some aspects of the GIS software and approached the relevant Administrator Mr Paul Ahern in this regard. He submits that on the day his contact with Mr Ahern he was approached by another Manager Mr Robert Murphy who removed all of the drawings related to the project and instructed him not to have any further involvement with this work. He submits that this undermined his confidence in the management structure and his reporting relationships. He further submits that he became fearful that he would lose his job.
He submits that, without his agreement, in 2009 his terms and conditions of employment were changed by the Company. He submits that he was transferred from the Department of Construction to the Department of Network Operations under the management of Ms Stella Corrigan. His former duties were dispersed to new recruits and other colleagues. He submits that this was done in order to put him in line for dismissal when the Renewals programme was completed. In the event this turned out to be what happened to him, he submits.
He submits that he all other fixed-term workers in the GIS office had further extensions of their contract in December 2009. He submits that he was moved to the Project Renewals office in order to avoid extending his fixed-term contract of employment and that this was no more than a process that was designed to facilitate his dismissal to avoid the possibility of him gaining a contract of indefinite duration.
He submits that he was bullied and harassed. He specifically refers to the delay in renewing his contract of employment each time it came up for renewal. He submits that this caused him considerable stress and anxiety. He submits that he complained of the bullying and harassment to the appropriate personnel including his trade union. He submits that a meeting was arranged with management to address his complaints but that he never got into direct discussions on the issue. The talks took place through his trade union official. The meeting was adjourned and never reconvened.
The Complainant submits that, contrary to the provisions of Section 8 of the Act he was not issued with a written statement on the renewal of his contracts of employment in April 2008 and April 2009, respectively.
The Complainant submits that he was dismissed at very short notice, without proper preparation and without any prior notification to the Personnel Department. He submits that he did not receive his termination payments on time as the decision to dismiss appears to have been hurriedly implemented.
Respondent Company's Case
The Respondent Company, represented by Ms Louise O'Byrne, of Arthur Cox and Company Solicitors, submitted that the Complainant has not made out any Complaint pursuant to Section 6 of the Act. Section 6 refers to“conditions of employment”and these are defined in the Act in the following terms
- “conditions of employment” includes conditions in respect of remuneration and matters relating thereto (and, in relation to any pension scheme or arrangement, includes conditions for membership of the scheme or arrangement and entitlement to rights thereunder and conditions related to the making of contributions to the scheme or arrangement);
No complaint regarding the Complainant’s remuneration was raised with the Rights Commissioner and accordingly the Respondent has no case to answer under this section of the Act.
Furthermore the Complainant alleged that he was, contrary to the provisions of Section 6 of the Act, shown less favourable treatment than a comparable a “comparable permanent employee.” In this regard the Complainant identified seven named comparators. The Respondent submits that six of the seven comparators are not comparable permanent employees within the meaning of the Act. 3 of the employees identified were fixed-term employees and therefore cannot be cited as comparators. 3 of the cited comparators are Band 6 and Band 7 employees and hold more senior positions that the Appellant who was employed as a Band 8 employee.
The Respondent Company further submits that one comparator, identified by the Complainant, was employed on the same Band as the Complainant and is therefore the only valid comparator for the purposes of the Act.
In this regard the Respondent Company submits that the Complainant received a salary of €38,798 whilst the comparator received a lesser salary.
The Respondent Company further submits that none of the named comparators with the exception of the comparator identified by the Complainant performed the same work under the same or similar conditions or are interchangeable with the Complainant in relation to the work. The Respondent Company submits that this is not the case with the named comparators.
The Respondent Company further submits that the differences in the work performed by the comparators, other than the comparator identified by the Complainant, is neither of small importance in relation to the work as a whole or occur with such irregularity as to not to be significant.
The Respondent Company submits that the work performed by the Complainant is not equal or greater in value than the work performed by the comparators other than the comparator identified by the Complainant .
TheRespondent Company submits that it notifies all vacancies for permanent employment and training opportunities that arise in its employment by way of general notice to all staff and that the Complainant had access to all such notices through the Company’s Intranet system. Furthermore hard copy notices of all vacancies are placed on notice boards that are easily accessible within the Respondent Company’s premises. The Respondent Company submits that this process is specifically provided for in Section 10(2) of the Act.
The Respondent Company submits that on foot of such public notices the Complainant applied for an advertised vacancy at Band 7 level in September 2008. He was unsuccessful at interview. Around the same time it advertised a vacancy at Band 8 level. However the Complainant did not apply for that position. Both of these vacancies were in the CAD/GIS area for which the Complainant had relevant qualifications and experience.
The Respondent Company further submits that on 6 March 2008 it advertised a vacancy for a permanent position for a GIS Development Co-Ordinator in the usual way. Again the Complainant had relevant qualifications and skills but chose not to apply for the position.
The Respondent Company further submits that the Complainant applied for and was interviewed for positions as Conventional Power Generation Engineer, Project Engineer and CNG Business Analyst. In December 2009 the Appellant applied for the position of Home Heating Consultant. The Complainant was invited for interview but did not confirm his availability.
The Respondent Company submits that it offered the Complainant ongoing access to training opportunities to enhance his skills, career development and occupational mobility. The Complainant was afforded regular GIS training throughout the duration of his fixed-term contracts of employment. Furthermore, the Appellant attended “Bord Gais Values Training” on 8 October 2008 and “Information Security Awareness” training on 9 November 2009
The Respondent Company submits the courses that the Complainant was refused access to were not relevant to his position as a CAD/GIS Technician. The Complainant sought training in CAS. The request was refused. The reason for this refusal was that the Respondent Company operates Bently Microstation drawing software. The Department to which the software was allocated has three user licences. One of those deployed on this system was himself a fixed-term worker. The reason therefore that the Complainant was not offered this training was that it was not necessary to his duties of data capture of accelerated renewals “as-laid”. Moreover all of the licences were allocated at that time and there was no business case for the investment in a further license or resources.
The Respondent submits that it supports training and development in disciplines which are relevant, necessary and appropriate to an employee’s professional development. The Complainant was made fully aware of the reasons why his training was not sanctioned having regard to the relevant training requirements of his position with the Respondent Company.
The Respondent submits that the Complainant has not identified a protected act that he performed within the Meaning of Section 13(1) of the Act. Accordingly, the Respondent submits that the Complainant could not have suffered a penalty arising out of his performance of any of the protected acts.
The Respondent Company submits that the Complainant was not dismissed for the purpose of wholly or mainly, avoiding him becoming entitled to a Contract of Indefinite Duration. The Complainant’s employment came to an end on the completion of the work on the special project for which he was employed.
The Respondent Company submits that it has no obligation under Section 9 of the Act to offer renew a fixed-term contract so as to bring the aggregate service of an employee on two or more continuous contracts, beyond four years so as enable them to secure a Contract of Indefinite Duration within the meaning of the Act. The Respondent referred the Court to the determination inAer Lingus and a Group of Workers (FTD054)as authority for this proposition.
Conclusions of the Court:
Section 6
The Court has not found any evidence to support a complaint that the Complainant was treated any differently than a comparable permanent employee in respect of his terms and conditions of employment as defined within the Act. The Court finds that the only comparable permanent employee within the meaning of the Act is the comparator identified by the Complainant . The Court can identify no conditions of employment that he enjoyed that were greater than those enjoyed by the Complainant.
Determination
Accordingly the Court does not uphold the complaint under Section 6 of the Act.
Section 8 (2) provides
(2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.
The Court finds that the Respondent Company did not, contrary to the provisions of Section 8 (2) of the Act, inform the Complainant in writing of the objective grounds justifying the renewal of the fixed-term contract by the date of the renewal of the Contract in 2008 and 2009 respectively.
Determination
Accordingly the Court upholds the Complaint under Section 8 of the Act.
Section 9
The Complainant commenced work with the Respondent Company on 18thApril 2007. His employment terminated on 18thDecember 2009. In total this amounts to two years and eight months employment in the service of the Respondent Company. Section 9(2) of the Act provides that
- 9 (2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years
Determination
The Court does not uphold the complaint made under Section 9(2) of the Act. The Decision of the Rights Commissioner is confirmed.
Section 10
Section 10 of the Act provides
- 10.—(1) An employer shall inform a fixed-term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees
(2) The information referred to in subsection (1) may be provided by means of a general announcement at a suitable place in the undertaking or establishment.
(3) As far as practicable, an employer shall facilitate access by a fixed-term employee to appropriate training opportunities to enhance his or her skills, career development and occupational mobility
The Court finds that, consistent with the provisions of Section 10(2) the Respondent Company advertised all vacancies by way of general notice on the intranet and hard copy on readily accessible notice boards. In this regard the Court finds that the Complainant had the same opportunities as all other employees to apply for vacancies for permanent positions within the Respondent Company.
The Court is not satisfied that the Complainant was facilitated with access to appropriate training opportunities to enhance his skills, career development and occupational mobility.
The Court accepts the submissions of the Complainant that he was actively involved in a broad range of duties that included involvement in CAD/GIS information activities. The training courses sought by the Complainant appear to the Court to have had some relevance to his employment. The Complainant’s contract of employment contains amongst others the following job Duties
- •Preparation of project drawing schedules
•Preparation of presentation drawings using GIS or CAD
•Preparation of detailed mechanical/civil design drawing for Distribution Regulator Installations using CAD
From these duties alone it is not unreasonable for the Complainant to seek to be trained in the software packages in use in the Department in which he was working. However no information was provided to the Court that any such training was at any stage given to him despite his repeated requests.
The Courses cited by the Respondent to illustrate the courses that were offered to the Complainant are more in the nature of induction training and organisation procedure familiarisation courses rather than professional or occupational courses designed to assist him enhance his skills, career development and occupational mobility. The Respondent identified no course that would meet that requirement. The Court finds that all of the courses the Complainant sought to pursue were refused him. The Court is not persuaded by the nature of the justification offered to it for such refusals particularly in light of the terms of the Contract of Employment that the Complainant had with the Respondent.
Accordingly the Court upholds the complaint under Section 10(3) of the Act.
Section 13
The relevant provision of Section 13 of the Act provides:
13.—(1) An employer shall not penalise an employee—
(a) for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part,
(b) for having in good faith opposed by lawful means an act which is unlawful under this Act,
(c) for giving in any proceeding under this Act or for giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a) or (b), or
The Complainant identified no protected act as defined in Section 13(1) (a) (b) or (c) of the Act that he had performed and for which he was penalised for having so performed. Accordingly the Court does not uphold the complaints pursuant to Section 13(1) (a) (b) and (c) of the Act.
Section 13(d) of the Act provides
(d) by dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9 (3).
The Court has formed the view that there was a difficult relationship between the Complainant and some of his Managers. The Court also notes that the Complainant’s contract of employment issued to him on 5 April 2007 provides that his job is that of a CAD/GIS Technician employed in the Network Construction Section reporting to the National GIS Manager & Assistant Drawing Office Manager (or as directed by the Company). Despite this his Department was changed from Network Construction to Network Services and his duties restricted accordingly. The Court takes the view that the relationship between the Complainant and some of his managers deteriorated because of his eagerness to contribute to various projects within the company and to submit unsolicited reports to senior managers including the CEO. The Court takes the view that these activities were to some extent a factor in the decision to limit the complainant to work on the Renewals Project that was coming to an end and that would provide the Respondent Company with the opportunity to prevent him securing an extension to his contract of employment and in time secure a contract of indefinite duration. The Court also takes the view that the hurried manner of his ultimate departure from the Company to some extent reflects this disposition.
Determination
Accordingly the Court determines that the Complaint’s dismissal was partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under Section 9(3) of the Act.
Determination and Remedy
Taking all matters into account the Court finds that the Respondent denied the Complainant his entitlements under Section 8(2), 10(3) and 13(d) of the Act. The Court orders the Respondent to pay the Complainant the sum of €15,000 in respect of the breaches of these rights and entitlements.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
16th April 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.