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 FT93353/10/MR
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision 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 CommissionerFT93353/10/MRin 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. She was given contract of employment to that effect. Her contract of employment was rolled over at various intervals and the Complainant was due to retire on her 65thbirthday. Due to some maladministration her final contract of employment was renewed for a period that took her beyond the date of her 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 she became entitled to a contract of indefinite duration by operation of law pursuant to the provisions of Section 9(3) of the Act. She further submits that the Respondent, in relying on Section 2(1) of the Act is in effect seeking to exclude her from the protection of a Directive of the European Union. She submits that the Court must construe the provisions of Section 2(1) of the Act very strictly. She submits that the Respondent is on strict proof of all aspects of the provision on which it is relying. In that regard she submits that the Respondent has failed to show that the she was employed on a public or publicly-supported training, integration or vocational retraining programme. She submits that having failed to do so it cannot rely on the exclusion and that she 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 she 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 she had been employed under the scheme after she had been made redundant and had been unemployed for a prolonged period of time. She acknowledged that the scheme provided her 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.