FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : CITY OF DUBLIN VOCATIONAL EDUCATION COMMITTEE, FAS NATIONAL TRAINING & EMPLOYMENT AUTHORITY, FINGLAS SPORTS DEVELOPMENT GROUP (REPRESENTED BY PATRICK F. O'REILLY & CO SOLICITORS) - AND - A WORKER (REPRESENTED BY JC HOBAN & COMPANY SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appealing against a Rights Commissioner's Decision FT90890/10/MR
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision FT90890/10/MR to the Labour Court. The Labour Court hearing took place on the 18th December, 2011.
The following is the Labour Court's Decision:-
DETERMINATION:
The Complainant appealed Decision of the Rights Commissioner in which he held that he did not have jurisdiction to hear the complaint.
Section 2(1) of the Act provides
- “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
It is common case that the City of Dublin Vocational Education Committee employed the Complainant on a Community Employment Scheme commencing in 2004. He was given contract of employment to that effect. His contract of employment was rolled over at various intervals and the Complainant was due to retire on his 65thbirthday. Due to some maladministration his final contract of employment was renewed for a period that took him beyond the date of his 65thbirthday. When the Respondent became aware that the scheme did not provide for employment beyond that age the contract of employment was terminated.
Position of the Complainant
The Complainant submits that he became entitled to a contract of indefinite duration by operation of law pursuant to the provisions of Section 9(3) of the Act. He further submits that the Respondent, in relying on Section 2(1) of the Act is in effect seeking to exclude him from the protection of a Directive of the European Union. He submits that the Court must construe the provisions of Section 2(1) of the Act very strictly. He submits that the Respondent is on strict proof of all aspects of the provision on which he is relying. In that regard he submits that the Respondent has failed to show that the Complainant was employed on a public or publicly-supported training, integration or vocational retraining programme. He submits that having failed to do so he cannot rely on the exclusion and that he is entitled to the protection of the Act.
Position of the Respondent
The Respondent submits that the Complainant did not come within the scope of the Act as he was employed on“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 Respondent submitted documents to the Court that it submits are sufficient to establish that the Complainant’s contract of employment was issued within the framework of a Community Employment Scheme that itself was established within the framework of a specific public or publicly-supported training, integration or vocational retraining programme.
Determination
Having considered the submissions of both parties the Court finds that the Complainant was employed on a Community Employment Scheme that is in the nature of a public or publicly-supported training, integration or vocational retraining programme. The Complainant told the Court that he had been employed under the scheme after he had been made redundant and had been unemployed for a prolonged period of time. He acknowledged that the scheme provided him with the opportunity to prepare to reintegrate into the workforce.
The Court finds that the Complainant’s contract of employment was concluded in the context of a public or publicly-supported training, integration or vocational retraining programme and is excluded under Section 2(1) of the Act.
The Court affirms the Decision of the Rights Commissioner.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
26th July 2012______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.