FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : PUBLIC APPOINTMENTS SERVICE (REPRESENTED BY MR ANTHONY KERR B.L. INSTRUCTED BY THE CHIEF STATE SOLICITORS OFFICE) - AND - MR CON RYAN DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Rights Commissioners Decision No: r-094987-ft-10/JT
BACKGROUND:
2. This case is an appeal by the worker of Rights Commissioners Decision No: r-094987-ft-10/JT.The facts of the case are largely agreed between the parties. In 2002 Mr Con Ryan retired from the Civil Service after a long and distinguished career. Around the time of his retirement, he says that the then Chief Executive of the Civil Service and Local Appointments Commission, subsequently renamed the Public Appointments Service, approached and enquired if he would be interested on serving on interview boards organised by the Commission. He agreed to do so and submitted his name for inclusion on the list of suitable and qualified people who were available to undertake such work when called upon to do so.
- Over the following years he served on interview panels for a total of 10 days in 2002, 337 days in 2003, 17 days in 2004, 53 days in 2005, 44 days in 2006, 17 days in 2007, 3 days in 2008, 3 days in 2009 and 1 day in 2010.
On June 9th2010 he submitted a complaint to the Rights Commissioner under the terms of the Protection of Employees (Fixed-Term Work) Act, 2003. The details of his complaint were that, contrary to the provisions of Section 6 of the Act, he was treated less favourably than two named comparable permanent employees with respect to pay, holidays entitlement or payment in lieu and compensation for training days associated with the work of the interview panels on which he served.
The Rights Commissioner found that he did not have jurisdiction to hear the Complaint on the grounds that the Complainant was not an employee within the meaning of the Act.
The Complainant appealed this 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 9th Januay, 2012. The following is the Courts Determination:
DETERMINATION:
Position of the Parties
Both parties made extensive written and oral submission to the Court on all of the legal and substantive issues in dispute.
The Complainant submitted that the Deciding Officer in the Department of Social and Family Affairs had determined on 26thMay 2008, that another retired civil servant employed in an identical position by the Respondent was engaged on a contract of service in respect of the days on which he actually served on interview panels with the Public Appointments Service. The Deciding Officer’s decision was expressed in the following terms ““Accordingly, based on the information on file and taking the Social Welfare Inspector’s report into account, I am satisfied the employment of [named person] as an Interviewer with the the Public Appointment Service is under a contract of service and insurable under the Social Welfare Acts at a Class A rate of PRSI. In response to quiries raised by the PAS the Department clarified this decision by letter dated 28thAugust 2008.
The Scope decision issued on 26thMay 2008 in respect of the insurability of [named person] employment with the Pubic Appointments Service related exclusively to the duties he performed on PAS interview boards after 7thof February 2006.Further correspondence followed and on 12thMarch 2009. The PAS wrote to the Social Welfare Inspector in the following terms“ I refer to your letter dated 24thFebruary 2009. I wish to inform you that this office accepts that the dates of 7thand 8thJune 2006 and 18thJanuary 2007 comprise part of Mr Con’s employment under a contract of service. However I wish to reiterate that no fees were payable to Mr X for these dates.”
The PAS therefore did not appeal this decision and subsequently behaved in its administrative dealings with retired civil servants as though they were employees for PAYE and PRSI purposes.
He further submitted thathis employment relationship with the Public Appointments Service satisfied all of the tests set out by the Supreme Court in the case ofHenry Denny & Sons (Ireland) Limited v The Minister for Social Welfare [1998] 1 IR 3
The Complainant further submitted that Section 6 of the Act provides thata 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.
He submitted that two named permanent employees served on interview boards on which he sat and were paid considerably more money than he was, accrued holiday entitlements in respect of the days on which they served on interview boards and were paid for training days for which he received no payment whatsoever. He submitted that they performed the same work on those boards as he did and accordingly were comparable permanent employees within the meaning of Section 5 of the Act. He said that the less favourable treatment he received arose out of the fixed term nature of his employment.
Respondent’s Case
Mr Anthony Kerr, B.L. representing the Respondent submitted that the Complainant was not an employee as no mutuality of obligations existed between the parties. The PAS, he submitted, had no obligation to offer work to Mr Ryan and he in turn had no obligation to take any work offered to him. He referred the Court to the decision of the House of Lords inCarmichael v National Power PLC [1999] I.C.R. 1226and to the decision of theHigh Court in Brightwater Selection (Ireland) Ltd v Minister for Social and Family Affairs High Court, unreported, 27thJuly 2011.Without mutuality of obligations, he submitted, no contract of service existed between the parties.
He further submitted that persons identified by the Complainant were not comparable permanent employees for the purposes of the Act. He submitted that all were or are full-time established civil servants performing the full range of duties that are associated with their particular grade. When they attend interview boards, they act in the capacity of the Respondent’s representative. They are only occasionally “active” board members, such as when a board member becomes unavailable at short notice.
He further submitted that if there was less favourable treatment, which was denied, it was justified on objective grounds. The grounds advanced were that the daily fees payable to interviewers such as the Appellant are fixed by the Department of Finance. In determining the appropriate fees, the Department had regard to the principle underpinning the Pensions (Abatement) Act 1965 which requires that a civil service pensioner who is appointed to a position in the Civil Service must have his or her pension abated so that his or her total income from pension and salary does not exceed the salary he or she would have received for the period of re-appointment had he or she not resigned from the Civil Service.
He submitted that the application of this principle had led the Department to set a standard rate for retired civil servants who serve on interview boards. As a result in 2003 the daily rate was set at €118 rising €161 in 2007. He submitted that the Department has the right and power to sanction all fees in the Civil Service when retired civil servants are engaged to perform tasks which are not the subject of a procurement procedure or a case of formal re-employment.
Conclusions of the Court
The Court considered the submissions of the parties, the additional information supplied and the submissions made in the course of the appeal in coming to its conclusions: -
A number of legal issues arise in this case. However the Court has taken the view that from a examination of the submissions made and the information provided the matter can be disposed of without the need to consider in detail all of the legal issues raised. The Court is satisfied that even if it were to find in favour of the Complainant in respect of all of those matters the Complaint would nevertheless fail to meet the requirements of Section 6 of the Act and accordingly could not succeed. Accordingly the Court has decided to confine its considerations to the issues that arise under Section 6 of the Act and to assume, without making any decision on the other issues and to proceed as though they had all been decided in the Complainant's favour.
Section 6(1) of the Act provides the general right of fixed term employees to equal treatment with comparable permanent employees with respect to conditions of employment.
Section 5 of the Act sets out what constitutes a comparable permanent employee.
- 5.—(1) For the purposes of this Part, an employee is a comparable permanent employee in relation to a fixed-term employee if
- (a)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
(b)in case paragraph (a) does not apply (including a case where the relevant fixed-term employee is the sole employee of the employer), the permanent employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant fixed-term employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable permanent employee in relation to the relevant fixed-term employee, or
(c)in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant fixed-term employee and one of the conditions referred to in subsection (2) is satisfied in respect of those employees
and references in this Part to a comparable permanent employee in relation to a fixed-term employee shall be read accordingly
(2) 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 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 or mental requirements, responsibility and working conditions
- (a)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
The first issue that arises in this case is what constitutes a comparable permanent employee where aspects of the work performed by both are the same but there are considerable differences when the work as a whole is examined.
The Court considered the observations of Baroness HaleMatthews v Kent & Midway Town Fire Authority[2006] IRLR 367where she addressed the issue in the following terms
At par 44 of the report Baroness Hale said: -
- In making that assessment, the extent to which the work that they do is exactly the same must be of great importance. If a large component of their work is exactly the same, the question is whether any differences are of such importance as to prevent their work being regarded overall as 'the same or broadly similar'. It is easy to imagine workplaces where both full and part-timers do the same work, but the full-timers have extra activities with which to fill their time. This should not prevent their work being regarded as the same or broadly similar overall. Also of great importance in this assessment is the importance of the same work which they do to the work of the enterprise as a whole. It is easy to imagine workplaces where the full-timers do the more important work and the part-timers are brought in to do the more peripheral tasks: the fact that they both do some of the same work would not mean that their work was the same or broadly similar. It is equally easy to imagine workplaces where the full-timers and part-timers spend much of their time on the core activity of the enterprise: judging in the courts or complaints-handling in an ombudsman's office spring to mind. The fact that the full-timers do some extra tasks would not prevent their work being the same or broadly similar. In other words, in answering that question particular weight should be given to the extent to which their work is in fact the same and to the importance of that work to the enterprise as a whole. Otherwise one runs the risk of giving too much weight to differences which are the almost inevitable result of one worker working full-time and another working less than full-time.
The Court is satisfied that the permanent employee and the relevant fixed-term employee are employed by the same employer and accordingly the requirements of Section 5(1) of the Act is partially met. However Section 5(1) goes on to require that one of the conditions referred to in subsection (2) is also satisfied in respect of both the Complainant and the comparable permanent employee..
After an examination of the information presented to it the Court is not satisfied that any of the conditions set out in Section 5(2) of the Act are satisfied in repect of those employees. They do not perform the same work under the same or similar conditions nor are they interchangeable with each other in relation to the work when taken as a whole. Whilst they are interchangeable as members of an interview board that is but a small portion of the total job performed by either of the comparators. When the entire jobs are examined the claimant’s and the comparator’s work in each case is neither the same nor are the job-holders interchangeable. The difference between the work performed by them both is very significant and in relation to the work as a whole, the frequency with which it is performed is very regular and the conditions under which it is performed by each are considerably different.
Finally the Court notes that no case was advanced that the work performed by the Complainant was equal or greater in value than that performed by the comparable permanent employees.
Decision
Having taken all factors into account therefore the Court finds that the complaint is not well founded and rejects the appeal for the reasons set out above.
Signed on behalf of the Labour Court
Brendan Hayes
6th February 2012______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.