FTD1310

This is an appeal by Carlow County Council against the decision of a Rights Commissioner in a claim by Ms Elizabeth Fingleton under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act).

In this Determination the parties are referred to as they were at first instance. Hence, Carlow County Council is referred to as the Respondent and Ms Fingleton is referred to as the Claimant.

The Claimant works for the Respondent as a revenue collector. She is engaged as and when she is required to cover temporary needs which arise from absences of permanent revenue collectors. She is not contractually entitled to any particular amount of work and she is remunerated only for the hours of work undertaken.

The Claimant commenced working for the Respondent in that capacity in or about 2004.her employment history is as follows: -

The Respondent contends that the Claimant is in a continuing contractual relationship and she is not a fixed-term worker within the statutory meaning. The Respondent’s position is that the period between assignments are to be regarded as lay-offs. It contends that she does not havelocus standito maintain this claim. The Claimant contends that each assignment is a separate contact for a fixed term. She contends that since she was employed for a period in excess of four years she is entitled to a contract of indefinite duration by operation of the combined effect of s 9(2) and s 9(3) of the Act. The Rights Commissioner found for the Claimant on that basis and declared that she became entitled to a contract of indefinite duration by operation of law.

Conclusion

If the Respondent is correct the Claimant is not a fixed-term employee and she cannot maintain her claim. If the Claimant is correct her employment history does not come within the preview of s.9(2) of the Act, which provides: -

• (2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed four years.

The aggregate duration of the Claimant’s employment does not exceed a period of four years as so defined. Consequently, whether the Respondent or the Claimant is correct in their characterisation of the employment relationship this claim cannot succeed. Accordingly the Rights Commissioner’s decision cannot stand.

The appeal is allowed and the decision of the Rights Commissioner is set aside.

Signed on behalf of the Labour Court



Kevin Duffy
CR______________________
30th April, 2013.Chairman



NOTE

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