FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : SLIGO COUNTY COUNCIL (REPRESENTED BY LGMA) - AND - LOUISE GALLAGHER (REPRESENTED BY RICHARD GROGAN & ASSOCIATES SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appealing against a Rights Commissioner's Decision r-123571-ft-12/EOS.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on the 21st December, 2013. A Labour Court hearing took place on the 9th December, 2014 following an adjournment on 10th April 2014. The following is the Determination of the Court:-
DETERMINATION:
This is an appeal by Ms Louise Gallagher (the Complainant) against the Decision of a Rights Commissioner which found that she had no jurisdiction to hear the claim under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act) as the Complainant was not a fixed-term worker and therefore had nolocus standi.
The Complainant alleged that Sligo County Council (the Respondent) 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. Furthermore, she rejected the Respondent’s objective grounds put forward to justify renewing her fixed term contracts and claimed that it was in breach of Section 8 of the Act.The Complainant also claimed that the Respondent was in breach of Section 10 of the Actasit failed to provide her withinformation on employment and training opportunities.
Background
The Complainant has been employed with the Respondent since 15thOctober 2001 initially in a temporary capacity as Temporary Clerical Officer,Enforcement Section and she was made permanent on 15thNovember 2001. From 23rdFebruary 2004 to 22ndOctober 2004 the Complainant held the position of Acting Assistant Staff Officer covering for maternity leave. On the cessation of the acting arrangements she was transferred to Corporate Services in her substantive grade as a Clerical Officer. In November 2005 she successfully applied for a post as Acting Assistant Staff Officer in Housing which arose on a temporary basis and commenced on 1stDecember 2005 until 31stMarch 2006. Then on 27thNovember 2006 the Complainant was appointed Acting Staff Officer filling in for a career break vacancy. The Complainant continues to the present day in an Acting Staff Officer position.
Summary of the Complainant’s Position
Mr. Richard Grogan, Richard Grogan & Associates Solicitors, on behalf of the Complainant submitted that as she has been on successive fixed-term contract foran aggregate of in excess of four years, the Complainant is entitled to a contract of indefinite duration by operation of law in accordance with Section 9(3) of the Actfrom 27thNovember 2010. Furthermore, he submitted that no objective justification had been furnished for the Respondent’s renewal of the contracts and its failure to issue her with a contract of indefinite duration.
Mr Grogan submitted that at the time that the complaint was submitted under the Act to the Rights Commissioner the Complainant was on a fixed-term contract and therefore contended that she haslocus standiunder the Act. In support of his claim he cited a determination of this Court,Rice College and Siobhan O'Donoughue, FTD1240.
Summary of the Respondent’s Position
Ms Sarah Hearns, Local Government Management Agency (LGMA) on behalf of the Respondent, raised a preliminary issue at the outset. She contended that the Complainant had nolocus standito maintain the complaintas she is a not a fixed-term worker within the meaning of the Act and accordingly submitted thatthe Courthasnojurisdiction to hear the appeal.
Ms Hearns stated that the Complainant holds the post of permanent Clerical Officerand that post has at all material times and continues to be, hersubstantive permanent post.Therefore, Ms Hearns submitted that the Complainant cannot rely on the provisions of the Act. She stated thatat no point during any of the Complainant's acting assignments was there any indication given of a change to her substantive post.
Ms Hearns submitted thatat alltimes the Complainant was a permanent employee of the Council, however, she was assigned to a higher post for a fixed period of time. Thiswas understood and accepted by all parties. Ms Hearns stated that the end of the Complainant’s employment with the Council was not determined byan objective condition such as arriving at a specific date,completing a specific task or the occurrence of a specific event.
In support of the Respondent’s contention, Ms Hearns cited three cases where the Labour Court held that it had no jurisdiction to investigate the dispute, as the Complainants were not fixed-term employees within the definition of the Act,Railway Procurement Agency v Allan Bell and othersFTD097;NUI Galway vDr Donnchadh
PhelanFTDI016 andUniversity College Cork vDr. Inge NieuwstratenFTD1122.
Ms Hearns maintained that in the instant case,thereis no dispute between the Complainant and the Council that she is employed on a permanent basis since 2001 and that her employment will terminate on her 65th Birthday at whichtime she will be entitled to avail of a pension under the Local Government Superannuation Scheme. She said that it is a feature of public sectoremployment that staffact up at a higher level when required. At all times theComplainant's employment asActing Assistant Staff Officer and Acting Staff Officer wasreferred to as'acting-up';theComplainantnever ceased to be a permanent employee.
Court’s Findings
The first issue the Court must consider is whether the Court has jurisdiction to hear the case i.e. does the Complainant havelocus standito maintain the within claims, this is dependent on her falling within the definition of fixed-term employee as set out in Section 2 of the Act.
Statutory Provision
The Act was enacted to give effect to Ireland’s obligations under Directive 99/70/EC concerning the framework agreement on fixed-term work. The object of the Directive is to provide for the application of the principle of equal treatment to fixed-term workers and to introduce measures to prevent the abuse of successive fixed-term contracts of employment.
Article 1 of the Directive states:-
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.
- ‘‘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;
The question before the Court is whether or not the Complainant is entitled to rely on the provisions of the Act in respect of periods when she was in an acting-up role.
There was no dispute between the parties that the Complainant is on a permanent contract. That contract commenced on 15thNovember 2001and will terminate on her retirement at age 65. The Court is of the view that the duties she carries out in an
acting-up capacity did not alter her employment status as a permanent employee and therefore she does not come with the definition of a“fixed-term employee”within the meaning of the Act.
In the caseLouth County Council v Paul KellyFTD1320 this Court held that a worker cannot be protected under the Act where that worker is already a permanent employee on secondment.The Court held that Mr Kelly held a substantive post as Executive Engineer with Louth County Council and 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 an appointment.The Court reasoned that the fixed-term contracts were supplemental to the Complainant's permanent employment as at the end of the secondment, the Complainant was always permitted to return to his substantive post and continue in employment.
InRailway Procurement Agencythis Court held that
- “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.”
In conclusion, the Court finds that at all material times the Complainant remains a permanent employee of the Respondent. While the functions she carries out are on an “acting” basis, the Court is of the view that this does not alter the nature of her employment status as a permanent employee.
Determination
The Court finds that the Complainant was on a permanent contract of employment at the time she made her complaint to the Rights Commissioner on 11thJune 2012 and therefore had nolocus standito maintain that complaint.
Accordingly, the Court determines that it has no jurisdiction to hear the complaint.
Therefore, the Court upholds the Rights Commissioner’s Decision and rejects the appeal.
Signed on behalf of the Labour Court
Caroline Jenkinson
15th December, 2014______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.