FTD1327

SUBJECT:
1. Appeal of Rights Commissioner's Decision r-115907-ft-11/EH.


BACKGROUND:

2. The Worker appealed the Rights Commissioner's Decision to the Labour Court. Labour Court hearings took place on the 4th July 2012 and on the 27th September, 2013. The following is the Labour Court's Determination:-

DETERMINATION:

This is an appeal by Ms Aoibheann Brady (the Complainant) against the Decision of a Rights Commissioner which found that her claims under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act) fell for lack of prosecution when she failed to attend the hearing.

The claims were received by the Rights Commissioner Service on 11^thOctober 2011 and concerned an allegation that Co Dublin VEC (the Respondent) treated her less favourably than a comparable permanent employee contrary to Section 6 of the Act and failed to provide her with a contract of indefinite duration in circumstances where she became entitled to such a contract by operation of law pursuant to Section 9 of the Act.

Background

The Complainant was employed by the Respondent on the following fixed-term contracts as a FIT (Fast Track to Information Technology) Technician:

14^thAugust 2006 until 13^thAugust 2007 - FIT Technician
14^thAugust 2007 until 13^thAugust 2008 - FIT Technician
14^thAugust 2008 until 13^thAugust 2009 - FIT Technician
14^thAugust 2009 until 31 December 2009 - FIT Technician
1^stJanuary 2010 until 31 December 2010 - FIT Technician

The Complainant resigned her position as FIT Technician on 20^thOctober 2010 prior to the expiry of the final fixed-term contract.

Thereafter the Complainant secured a part-time contract with Collinstown Park Community College to provide trainingin PC Maintenanceto adult students and she worked in this role from 14^thOctober 2010 until May 2011.

Summary of the Complainant’s case

The Complainant was employed by the Respondent from 14^thAugust 2006, she was placed in the City of Dublin VEC to provide technical support to Schools and centres within the City of Dublin VEC and her contract was specifically designed to give former FIT students the opportunity to gain practical work experience. She submitted to the Court that although she worked alongside and performed identical work as other IT Support Technicians in the City of Dublin VEC, and at times with the Respondent’s IT Support Technicians, yet they were paid on a higher payscale (ref. Circular 89/08-Technicians Scale B).

Furthermore, she claimed that she was not paid travel expenses, not provided with a company phone for work use and had less favourable annual leave entitlements– 20 days annual leave as opposed to 27 days granted to her comparators.

Through her Union representative, the Complainant made a formal claim under the Act to the Respondent’s HR Department on 25^thMay 2010. By latter dated 21^stJanuary 2011 the Complainant received a formal written response from the Respondent’s HR Department refuting the claim.

Following this claim there was some confusion as to who was the correct Respondent to the claim and eventually it was agreed that County Dublin VEC was the appropriate Respondent as the Complainant was contracted and paid by County Dublin VEC.

The Complainant nominated a comparator for the purposes of her Section 6 complaint and the nominated comparator was employed by the City of Dublin VEC, an associated employer. The Complainant worked alongside the nominated comparator carrying out the same work with identical dutiesand responsibilities providing technical support to Schools,Colleges and administrative offices in City of Dublin VEC.

In August 2010 having worked for the Respondent for four consecutive years on five
successivecontracts the Complainant requested a contract of indefinite duration. She stated that as the Respondent refused to provide her with a contract of indefinite duration and as she feared she might not be offered another fixed-term FIT Technician’s contract she decided to resign her post and apply for a teaching contract which paid a substantially higher salary.

Summary of the Respondent’s position

Mr. William Egan, Solicitor, William Egan & Associates, Solicitors, on behalf of the Respondent, denied the claim under Section 6 on the basis that the Complainant's chosen comparator was not a comparable permanent employee and accordingly held that she was not entitled to any relief under Section 6 of the Act.

Mr. Egan stated that the Respondent accepted that the renewal of the Complainant’s fixed-term contract in January 2010 by operation of law had become a contract of indefinite duration with its original terms intact except for the term providing for its termination by effluxion of time or the occurrence of an event. However, the Complainant had resigned from her position in October 2010 and therefore the contract had come to an end.

At the outset of the hearing Mr. Egan raised a number of preliminary issues before the Court. It was agreed with the parties that the Court would deal with these matters as a preliminary issue.

• (i)No Decision of a Rights Commissioner capable of appeal

Mr. Egan referred to the Rights Commissioner’s Decisionin this case, which found as follows:

• "Decision
  
  No casewas presented.
  The claim fails for wantofprosecution."

Mr Egan submitted that asthere was no hearing of the complaint the mandatory components of a Decision following a hearing were absent from the Decision on the face of it.He held that Section 15 can only apply to the actual Decision of a Rights Commissioner lawfully taken under Section 14. If no Decision has been taken under Section 14in accordance with the vires conferred by the statutory scheme on the Rights Commissionerthen he submitted that there was no Decision capable of lawful appeal under Section 15 of the Act.Mr. Egan further submitted thatas the Labour Court's jurisdiction is limited to affirming, varying or setting aside the Rights Commissioner's Decision and as no such Decision was made, therefore the Court has no jurisdiction under the Act.

• (ii)Complainant has no locus standi

Mr. Egan submitted that the Complainant was not a “fixed-term employee” within the meaning of Section 2 (1) (b) of the Act and therefore she has nolocus standito pursue her complaint as she was employed in a category of employment which is excluded under the Act. Mr. Egan held that as the Complainant was engaged within the framework of the FIT initiative, a publicly-supported training programme and publicly-supported vocational retraining programme, she was excluded by the provisions of Section 2 of the Act.

The FIT programme originated from an approach by the FIT Company to both the County Dublin VEC and the City of Dublin VEC. Both VECs agreed to run the programme to help studentsto train people in a range of IT skills (hardware and software) including the A+ Certification. The Complainant was a participant on the FIT training programme and, on completion of the training programme, progressed into a vocational training relationship with the VECs to gain practical industry experience in order to increase greater access to employment opportunities within the IT sector. Accordingly, the Respondent submitted that the Complainant hadnolocus standito pursue redress under the legislation as she was excluded by the provisions of Section 2 of the act which defines “fixed-term employee” as follows:-

Section 2 Interpretation
Section 2 (l)provides as follows:

• "Fixed-Term Employeemeansa person having acontract of employmententeredintodirectly with anemployerwherethe end ofthecontract ofemploymentconcerned isdetermined byan objectivecondition such as arriving ataspecificdate,
  completing a specifictask or theoccurrence of a specificevent but does not include-
  
  • a)employee in initialvocational training relationships orapprenticeshipschemes, or
    b)employees with acontract of employmentwhichhas beenconcluded
    within the framework of aspecificpublic or publicly-supported training, integration or vocational retrainingprogramme;

The Respondent stated that FIT Ltd is a registered charity and not-for-profit organisationestablished in 1999. The FIT Initiative develops and promotes technology-based programmes and career development opportunitiesfor job-seekers who have become detached from the labour market in an increasingly knowledge-based economy.It is an industry-led initiative which works in close collaboration with Government Departments and national education and training agencies,local development organisations and a host of community-based organisations.Its primary partners in education and training include FAS, VECs, Third Level Institutions,Leargas,Leader Companies, Rapid Co-ordinators, Local Authorities and Employment Pacts.

FIT's mission is to promote an inclusive Smart Economy by creating a fast track to marketable technical skills for those at risk of long term unemployment.It is designed to work withdisadvantaged communities to enable greater access to employment for marginalisedjob-seekers.

To dateover 8,000 job-seekers have completed FIT skills development programmes of which over 5,000 progressed into employment.2,500 job-seekers are currently participating in FIT programmes. Recently the EU Commission cited FIT as one of the most effective employability initiatives in Europe.

• (iii)The Complainant’s complaints are statute-barred

Without prejudice to the above positions Mr. Egan, submitted that the complaints referred by the Complainant are statute-barred as they are out of time. The Complainant presented her claim to the Rights Commissioner on 11^thOctober 2011 and she had resigned from her position on 20^thOctober 2010.

Section 14 (3) of the Act imposes on the Rights Commissionera statutory
prohibition on entertaining a complaint that is presented to him/her after the expiration of a period of six months beginning on the date of alleged contravention to which the complaint relates or the date of termination of the contract of employment concernedwhichever is the earlier.

Section 14 (4) of the Act allows a Rights Commissioner to entertain a complaint presented to him/her after the expiration of the six months referred to in subsection (3) but not later than twelve monthsafter the end of that period. If the Rights Commissioner is satisfied that the failure to present the complaint within six months was due to reasonable cause he/she may make a decision to extend the period of limitation and not adhere to the provisions of Section 14 (3)of the complaint.

Mr. Egan disputed the Complainant’s entitlement to an extension of time. He submitted that the circumstances in this case did not meet the criteria as outlined by this Court inCementation SkanskavTom Carroll (Determination no.DWT0338)wherein an extension of the timelimit to bring a case was granted,theCourt held:-

• "in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which theexpression reasonable course appears in the statute it suggestsan objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time.The claimant's failure to present the claim within the six month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability,that had those circumstances not been present he would have initiated the claim in time. The length of the delay should be taken in to account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case".
  

The Complainant’s Position on the Preliminary Matters Raised.

• (i)No Decision of a Rights Commissioner capable of appeal

The Complainant declined to comment on this point and was satisfied to allow the Court to form its view on the matter.

• (ii)Locus standi

The Complainant disputed the Respondent’s contention that she had nolocus standiunder the Act. She submitted that she was not excluded by the provisions of Section 2 of the Act as she was employed as an employee by the Respondent and was not on a
publicly-supported training programme and publicly-supported vocational retraining programme.

The Complainant stated that she had completed the A+ Certification Course within the agreed arrangements between FIT and the VEC in Collinstown Park Community College in 2004. She completed a contract for the FIT training programme in the Office of Public Works. She said that she was employed as one of the Support Technicians employed by the Respondent under the agreed arrangements where the Department of Education & Skills provided the necessary funding for the salaries of a FIT Co-ordinator and two IT Support Technicians to support the schools and centres running the FIT programme.

The Complainant did not accept the Respondent’s contention that the two Technicians employed to support the schools /centres' running of the FIT programme were in fact participating in any sort of FIT programmes themselves. She argued that the training programme itself gave her "practical industry experience" and the Respondent benefited from that experience while depriving another FIT graduate student the opportunity to gain such practical industry experience. She further submitted that with each year her contract was renewed her experience and knowledge grew further benefiting the Respondent thereby saving it from having to re-train new staff each year. She further argued that if the programme was designed to "increase greater access to employment" for past FIT students then the successive renewal of her contract violates the purpose of the contract by depriving other FIT students of such an opportunity.

• (iii)Complaints are statute-barred

The Complainant made an application to the Court under Section 14(4) of the Act to be permitted to extend the time for bringing a claim under the Act. She submitted that there were circumstances in this case that explained this delay and afforded an excuse for this delay.

The Complainant stated thatshe was unsure of the validity of her claim andthere was someconfusion relating to her change in position from IT Support Technician to Part-Time-Teacher in October2010. She said that IMPACT could no longer represent heras Teachers are not covered by IMPACT and that she was misinformed by the Respondent that the issue was no longer valid as she had resigned her position. She said that she was reluctant to pursue the matter as she was on a Part-Time-Teacher contract and was concerned that it might jeopardise her chances of obtaining further employment as a Part-Time-Teacher.

The Complainant said that she was not aware of the possibility of seeking an extension of time under Section 14 (4) until she received advice from the Citizens Advice Centre.

Conclusions of the Court on the Preliminary Matters

• (i)Is the outcome of the Rights Commissioner capable of appeal?

The Court is satisfied that the outcome of the Rights Commissioner’s hearing was a Decision to dismiss the Complainant’s complaint. This is a Decision within the meaning of Section 15 of the Act and is capable of being appealed.

• (ii)Does the Complainant have “locus standi” ?

The Court must explore whether or not the Complainant has “locus standi” to bring her complaints under the Act.

Section 2 (l)provides as follows:

• "Fixed-Term Employeemeansa person having acontract of employmententeredintodirectly with anemployerwherethe end ofthecontract ofemploymentconcerned isdetermined byan objectivecondition such as arriving ataspecificdate,
  completing a specifictask or theoccurrence of a specificevent but does not include-
  
  • c)employee in initialvocational training relationships orapprenticeshipschemes, or
    d)employees with acontract of employmentwhichhas beenconcluded
    within the framework of aspecificpublic or publicly-supported training, integration or vocational retrainingprogramme;

Having considered the submissions of both parties the Court is not satisfied that the Complainant was employed for the purposes of developing her career opportunities within the IT sector asshe was not in the category of job-seekers who had become detached from the labour market but was employed to provided such opportunities to those who were.

While the Complainant may have commenced on a vocational training relationship with the Respondent the fact that it extended over a period of over four years, terminating only on the voluntary resignation of the Complainant, implies that it was more akin to an employment relationship than in the nature of “a public or publicly-supported training, integration or vocational retraining programme” to gain practical industry experience.

The Court is not satisfied 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 accordingly a “fixed-term worker” for the purposes of the Act and therefore she is not excluded by Section 2(1) of the Act.

• (iii)Is the claim statute-barred ?

Thecomplaint was made to the Rights Commissioner on 11th October2011 and related to her claim that she wastreated less favourably than a comparable permanent employee contrary to Section 6 of the Act for the period she was employed as a FIT Technician i.e. from 14^thAugust 2006 until 20^thOctober 2010 and by its failure to provide her with a contract of indefinite duration in circumstances where she became entitled to such a contract by operation of law pursuant to Section 9 of the Act on 1^stJanuary 2010.

• Section 14 - (3) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates or the date of termination of the contract of employment concerned, whichever is the earlier.
  
  (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.

This Court has consistently held that the test for extending time for reasonable cause shown should be analogous to that enunciated by Costello J (as he then was) inO’Donnell v Dun Laoghaire Corporation[1991] I.L.R.M 30 for extending time pursuant to O.84 r.21 of the Rules of the Superior Courts 1986. This was initially outlined in theCementation Skanskacase as quoted by Mr Egan above.

The Court notes that at the hearing before the Court the Respondent accepted that the Complainant became entitled to a contract of indefinite duration with effect from 1^stJanuary 2010 and therefore it is not necessary for the Court to consider the question of whether this aspect of the claim was presented within the statutory time limits or not.

The factors relied upon in this case are that the Complainant delayed in seeking her statutory rights in case it would jeopardise her employment with the Respondent. Secondly, she relied on the fact that IMPACT could no longer represent her when she resigned as a Technician to take up a teaching role. Finally, she submitted that she was unaware of her statutory rights.

The Court finds it difficult to accept these contentions as a claim for entitlement to a contract of indefinite duration had been raised both personally and by the Complainant’s Union representative with the Respondent since 2009 and she suffered no adverse consequences as a result of raising the matter. Furthermore, on the authority of the decision of the High Court inMinister for Finance v CPSU and Ors. [2007] 18 E.L.R. 36 (per Laffoy J.) ignorance of the law cannot be accepted as constituting reasonable cause for the Complainant’s failure to lodge her claim in time. The Court is bound by that decision.

By email dated 20^thOctober 2009 the Complainant sought advice from her IMPACT representative on the matter of her entitlement to a contract of indefinite duration. The Union took the matter up with the Respondent and entered into correspondence over a period of time on the issue. By email dated 30^thApril 2010 the Complainant herself brought the matter up directly with the Respondent. On 25^thMay 2010 the Union submitted a letter to the Respondent headed“Claim under Fixed Term Workers Protection Act, 2003”where itoutlined its contention that the Respondent was in breach of Section 6 of the Act. This occurred prior to her resignation from her role as a Technician and prior to her securing an alternative role with the Respondent. While it is noted that the Respondent did not respond to the Union’s letter until 21^stJanuary 2011, this was still within the six-month time limit under Section 14 (3) of the Act, yet the claim was not referred to the Rights Commissioner Service until almost seventeen months after the Union signalled its intention to do so.

Based on the information before the Court, the Court is not satisfied that the Complainant has shown reasonable cause in accordance with Section 14(4) of the Act for allowing an extension of time up to twelve months beyond the period stipulated in Section 14(3). Accordingly, the Court rejects the application made under Section 14(4) of the Act and finds that the complaint made was out of time.

In these circumstances it is unnecessary for the Court to deal with the substantive claim under Section 6 of the Act.

Determination

The Complainant’s application and appeal are disallowed and the Decision of the Rights Commissioner is varied accordingly.



Signed on behalf of the Labour Court



Caroline Jenkinson
15th October, 2013______________________
JFDeputy Chairman



NOTE

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