FTD133

Mr Winters (“the Complainant”) worked the Wicklow County Council (“the Respondent” or “the Employer”) as an Engineer from the 27^thAugust 2007 on a series of fixed term contracts of employment until his employment terminated on the 1^stJuly 2011. On the 3^rdJune 2011 the Respondent wrote advising him that his employment would terminate on the 1^stJuly 2011.

The Complainant submitted a complaint to the Rights Commissioner on the 22^ndDecember 2011 alleging breaches of his entitlements under Sections 10 and 13 of the Act. The Rights Commissioner conducted an investigation into the complaints and decided that they were not well founded. The Complainant appealed these Decisions (dated 25th June 2012) to the Labour Court.

The case came on for hearing on the 8^thNovember 2012.

Complainant’s Position

The Complainant argues that he was initially employed in August 2007 as a Temporary Resident Engineer to work on the Wicklow Port Access and Town Relief Road Project. The contract of employment was specific to that project and would terminate on its completion. In April 2010 the Respondent transferred the complainant to work on the Wicklow South Quay Project. Initially he undertook this work in addition to his normal work on the Port Access project. However after a short period of time it became clear that volume of work involved required that he devote himself full time to the Town Relief Road project. The Respondent told the Court that that whilst no written contract was issued in respect of this work there was a verbal contract in being with the Complainant regarding his involvement on this second project. By January 21^st2011 work on the South Quay Project had stalled and the Complainant was transferred back to work full time on the Port Access and Town Relief Project. On June 3^rdthe Complainant was told his employment would terminate on the 1^stJuly 2011 on the completion of this project. The Complainant argues that he had been given assurances that he would be retained until in employment until the South Quay Project was complete. He further contends that had he been so transferred he would have accrued an entitlement to a contract of indefinite duration. He argues that the decision not to transfer him back to work on that project was contrary to the provisions of Section 13 (1) of the Act as it was taken for the purpose of avoiding the fixed term contract employment being deemed a contract of indefinite duration.

The Complainant further argues that his rights under Section 10 of the Act were infringed when the Respondent failed to notify him of permanent and promotional vacancies that arose during the course of his employment.

Respondent’s Position

The Respondent argues that it terminated the Complainant’s employment on the completion of the Port Access and Town Relief Road Project for which he was employed. It argues that the Complainant had no entitlement to return to work on the South Quay Project and even if he did have such an entitlement and had it been acted upon he would not have accrued an entitlement to a contract of indefinite duration as his employment was project specific and there was no fixed and permanent need for his services within the Council.

The Respondent further argues that the Council advertises all vacancies through the internal email system and the intranet to which the Complainant had full access. Moreover the Complainant has not identified an impugned act by the Council within six months of the date on which the complaint was lodged with the Rights Commissioner. On this basis the Respondent argues that there is not complaint under Section 10 of the Act properly before the Court.

Findings of the Court

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.
  

• (4)Notwithstandingsubsection (3), a rights commissioner may entertain a complaint under thissectionpresented to him or her after the expiration of the period referred to insubsection (3)(but not later than 12 months after the end of that period) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.
  

Determination

As no impugned act occurred at the relevant time the Court determines that the Complaint is not well founded.

Section 13 Complaint

The Complainant submits that he was dismissed in order to avoid the fixed term contract being deemed a contract of indefinite duration. He argues that he was entitled, in July 2011, to return to the South Quay Project and continue working there. Had he done so, he would, he claims, have accrued an entitlement to a contract of indefinite duration by operation of law. The Respondent denies both his assertion that he was entitled to return to the South Quay Project and his claim that he would have accrued an entitlement to a Contract of Indefinite Duration.

The Complainant gave evidence to the Court regarding his claimed entitlement to return to the South Quay Project. However the evidence was confused and inconsistent. He said he was told by a Mr Duncan Cole to transfer back from the South Quay Project to the Port Access and Relief Road Project in July 2011 with a commitment he would return to the South Quay at a later date. However he did not raise this point when he was told on June 3^rdthat his employment would end on the 1^stJuly 2011. When asked why he did not raise it at that time he said it did not cross his mind and he only became aware of his entitlement to a Contract of Indefinite Duration after he had taken legal advice. It was at that point that he raised the commitment he received from Mr Cole.

The Court finds this account of events wholly unconvincing. The Court finds that the Complainant was moved back to work on the Port Access Project in January 2011 when the South Quay Project stalled. The Court finds no connection between that transfer and the decision in July 2011 to terminate the Complainant’s employment when that project came to an end. The Court is not convinced that the Complainant had received any assurances that he would be returned to the South Quay Project at a future date. The Court takes the view that, had he received such an assurance, he would have raised the matter with management when he was given notice of the termination of his employment on June 3^rd2011 to take effect on the 1^stJuly 2011. He did not do so. Moreover the Court is persuaded by the Respondent’s argument that the Complainant’s employment was terminated because the project work for which he was employed had come to an end and there was no further requirement for his services.

Determination

The Court determines that the Complaint is not well founded. The Rights Commissioner’s Decision is upheld. The appeal is rejected.

Signed on behalf of the Labour Court



Brendan Hayes
21st January, 2013______________________
JFDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.