FTD1320

• “In accordance with Section 14(2) of the Act I declare the Claimant has at all material times been employed on a permanent contract of employment with Louth County Council and was appointed in an Acting capacity on 17^thNovember 2008 as Senior Project Manager. He was paid his salary in the substantive grade of Executive Engineer plus an Acting Up Allowance. When his Acting Up to Senior Project Manager comes to an end he will revert to his substantive grade of Executive Engineer with Louth County Council.”

The facts of the case are not in dispute. The net issue for decision by this Court is whether the Complainant is a fixed term worker for the purposes of the Act.

The Law

The Protection of Employees (Fixed Term Work) Act 2003 transposes Council Directive No. 1999/70/EC into Irish law.

The Directive states at paragraph 14

• 
  (14) The signatory parties wished to conclude a framework agreement on fixed-term work setting out the general principles and minimum requirements for fixed-term employment contracts and employment relationships; they have demonstrated their desire to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination, and to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

  (17) As regards terms used in the framework agreement but not specifically defined therein, this Directive allows Member States to define such terms in conformity with national law or practice as is the case for other Directives on social matters using similar terms, provided that the definitions in question respect the content of the framework agreement;

Article 1

• The purpose of the Directive is to put into effect the framework agreement on fixed-term contracts concluded on 18 March 1999 between the general cross-industry organisations (ETUC, UNICE and CEEP) annexed hereto.

• The purpose of this framework agreement is to:

  (a) improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination;

  (b) establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

• 1. This agreement applies to fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in each Member State.

• 1. For the purpose of this agreement the term "fixed-term worker" means a person having an employment contract or relationship entered into directly between an employer and a worker where the end of the employment contract or relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event.

Interpretation

The meaning of the term fixed term employee for the purposes of the 2003 Act is expressed in terms identical to the meaning set out in the Directive

• fixed-termemployee” 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— etc

• (4) Notwithstanding subsection (3) , a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (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.

  (5) A complaint shall be presented by giving notice of it in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.

“the protection of the Act is conferred solely on fixed-term employees and a complaint under the Act can only be entertained if it relates to a period of fixed-term employment.

The Complainant says that he is a fixed term employee. The Respondent maintains that the Complainant is a permanent employee working in a temporary higher grade.

An examination of the Contracts of employment issued to the Complainant reveals the following.

His first contract of employment states

“You will be employed as Executive Engineer. “

It makes no provision for the termination of his employment other than for misbehaviour or incapacity. Accordingly it cannot be considered a fixed term contract of employment within the meaning of the Act.

The second Contract of Employment is dated 15^thAugust 2005. It states

“3. Position

You will be seconded as Senior Executive Engineer to the water conservation project for an initial period of two years.

10 Remuneration

Salary will be paid weekly by means of a credit transfer. Statutory deductions will be made as appropriate.

Your rate of pay will be €57,921 p.a. gross which is the 1^stpoint of the Senior Executive Engineer scale.”

This contract of employment is clearly supplemental to the Complainant’s permanent employment. At the end of the secondment the Complainant returns to his substantive post and continues in employment.

On 19 September 2007 the County Manager extended the Contract until 31^stMarch 2008.

The contract was not formally extended on the 31^stMarch but the Complainant continued working under its terms for a number of months. It is common case the Complainant retained a right to return to his substantive post at the end of the secondment to work as a Senior Executive Engineer.

The Third Contract

In 2008 the Complainant successfully competed for a position as a Temporary Senior Project Manager with Louth County Council. He was offered the position on a fixed term contract of employment. The terms of the Contract of Employment in relevant part provide

“3 Position

You will be employed as a Temporary Senior Project Manager.

5 Employment Period

• Your employment as Temporary Senior Project Manager with Louth County Council will be from Monday 17^thNovember 2008 for the specific purpose of managing the Councils Housing Capital Programme and Works and to prepare a County-at Large Planned Maintenance Programme, which is estimated to last for 4 years, as determined by Louth County Council , or until alternative arrangements are made whichever is the earlier.

• Your rate of pay will be €68,994 p.a. gross which is the 3^rdpoint of the Senior Executive Engineer scale.”

In 2012 the Complainant was successful in a further competition for the post of Acting Senior Engineer with Louth County Council. He decided not to accept the post on the terms offered to him. Instead he continued in the 2008 contract and asserted a right to a contract of indefinite duration under Section 9 of the Act.

On 22^ndOctober 2012 the Council advised the Complainant thathis “acting arrangement as Acting Senior Executive Engineer will cease on Friday 16^thNovember 2012. You will then revert to your substantive grade of Executive Engineer and transfer to a new position of Facilities/Energy Manager. Further details in relation to this role will follow in due course.

The Complainant returned to the substantive post and initiated a complaint under the Act.

An analysis of the foregoing reveals that the complainant became an employee of the Respondent Council in 2003. He remained a permanent employee when he was seconded to work as a Senior Executive Engineer in August 2005. The secondment was extended by Manager’s order in 2007. At that point he was clearly an permanent employee on secondment to an Acting position.

In 2008 however he applied for and was appointed to a Temporary Senior Project Manager post. The Contract of Employment attaching to that post, unlike the earlier ones, made no reference to the Complainant’s substantive post. Accordingly it appears on the face of it that the Complainant at this point was a fixed term worker. His employment was terminable in accordance with the terms of the Contract which was itself for a temporary period of time. However it is common case that the Complainant at all times retained a right to return to his substantive post as an Executive Engineer. The Complainant did not accept any further fixed term contracts of employment. Instead he was returned to a permanent position as an Executive Engineer.

In summary therefore the Complainant was a full time employee of the Council who was either expressly or implicitly on “secondment” or filling an “acting” position.

At no point in the employment relationship did the Council seek to deny that the Complainant was a permanent employee.

The Complainant relies on the decision in McComb v Belfast Education and Library Board [2011]NIIT 0 1251 1 OIT (09 August 2011). He argues that the decision in this case establishes that a fixed term worker who holds a substantive post comes within the ambit of the Directive and by extension the Act. The Respondent argues that neither the Directive, the Act, the jurisprudence of this Court nor the details of the cited case support the Complainant’s position.

Ms McComb was an employee of the South Eastern Education and Library Board prior to commencing employment with the Respondent on 1 January 2003. She had responded to a “trawl notice” seeking staff to assist with the establishment of a shared services payroll and human resources function for five library boards in Northern Ireland. The project was originally expected to run for three years but in fact ran for over eight years and was eventually put on a permanent footing. The Complainant, who had been appointed to her post on a fixed term basis at the commencement of the project sought a declaration that she was a fixed term worker within the meaning of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002. The Respondent did not deny that Ms McComb was employed on a fixed term contract basis. It also argued that Ms McComb had a right to return to her substantive post at the end of the fixed term contract. However the Complainant established to the satisfaction of the Tribunal that she had resigned her substantive post and that her employment had been terminated when she took up the fixed term position with Belfast Education and Library Board. Moreover Belfast Education and Library Board sought to justify the failure to offer the Complainant a contract of indefinite duration on objective grounds.

None of these circumstances apply in the matter before this Court. It is common case that the complainant at all times held a substantive post as Executive Engineer with Louth County Council. At no stage did he or the Council terminate his permanent employment contract. Over the course of his employment the Complainant worked for Louth County Council on various temporary projects for which he was remunerated at a higher grade. However at no point was his substantive post at risk nor was his employment with the Council contingent on the continuation of the temporary projects to which he had won appointment. Accordingly the Court finds that the Determination in McComb is of no assistance to the Court in determining this matter.

Accordingly the Court finds that the Complainant was at all times a permanent employee of the Respondent Council. In order to come within the ambit of the Act a Complainant must have the status of a fixed term worker. The Court interprets that to mean that a Complainant’s employment must be coterminous with the expiry of a fixed term or fixed purpose contract of employment. A complainant who reverts to their substantive grade and whose employment continues at the end of a fixed term assignment does not enjoy the protection of the Act. In this case the Complainant was at no point a fixed term worker within the meaning of the Act. At all times he held a contract of indefinite duration as an Executive Engineer. At times he applied for and was appointed to temporary assignments and was remunerated accordingly. However at all times he continued to hold a contract of indefinite duration and his employment status was never at risk while on temporary assignment.

Determination

The Complaint is not well founded. The Court upholds the decision of the Rights Commissioner.

Signed on behalf of the Labour Court



Brendan Hayes
CR______________________
25th July, 2013Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.