FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : NORTH TIPPERARY COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY) - AND - LIAM RYAN DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. An appeal against a Rights Commissioner's Decision r-139412-ft-13/GC.
BACKGROUND:
2. The Claimant appealed the Rights Commissioner's Decision to the Labour Court on the 20th May 2014. A Labour Court hearings took place on the 7th October 2014. The following is the Labour Court's Decision:-
DETERMINATION:
This is an appeal by Mr Liam Ryan against the Decision of a Rights Commissioner in his complaint against North Tipperary County Council under the Protection of Employees (Fixed-Term Work) Act 2003, (the Act). Mr Ryan contends that he was penalised contrary to Section 13 of the Act. The Rights Commissioner dismissed the case as she held that his claim was submitted out of time.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Liam Ryan will be referred to as “the Complainant” and North Tipperary County Council will be referred to as “the Respondent”.
The complaint was referred to the Rights Commissioner pursuant to the Act on 23rdOctober 2013.
Background
The facts of this case were previously cited in Determination FTD1322, when the same issue previously came before the Court. However in that Determination the Court found that as no claim of penalisation had been presented to the Rights Commissioner, it had no jurisdication to hear the claim and consequently dismissed the appeal. The Court stated:-
- “If the Court were to hear and determine a point not canvased before a Rights Commissioner it would be purporting to exercise a first instance jurisdiction that the Court does not have.”
The nub of the case before the Court in this case is that the Complainant was penalised contrary to Section 13 of the Act in not being offered employment from the panel as he was placed at number 33, this action he contends was so as to avoid him from accruing a contract of indefinite duration under section 9(3) of the Act.
Preliminary Issue
A preliminary question under consideration relates to whether the claim is in time, this involves the question as to the Complainant’slocus standiwhen he referred his claim to the Rights Commissioner. The question is whether or not he was an employee within the six month prior to the date of claim.
The Respondent submitted that the Complainant’s employment with the Respondent ceased on 23rdNovember 2011, 23 months before he referred his claim under the Act.
Section 14(3) of the Act provides:
- 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.
Following his successful application the Complainant was placed no. 23 on a panel for seasonal general operatives in 2007, as a result he was employed on the Road Works Programme on a fixed term contract from 22ndFebruary 2007 until 23rdMay 2007, this was further extended on five occasions until 2ndJanuary 2008.
In 2008 the Respondent advertised again for a panel in2008 and the Complainant was placed no. 6onthepanel.He was offereda6 month contract from6thMarch 2008 to3rd September,2008, which was further extended on two occasions until 7thJanuary,
2009.
In early2009,SIPTUsought the establishment ofasingle permanent panel
fromwhichstaff would be offeredwork eachyear based on seniorityrelatingto previousservice with the Council.The matter was the subject ofa number of LRC
hearingsin 2009. Accepting the matterwasin conciliation and on an exceptional basis
theCouncil did not follow itsnormal process of advertising for 2009summerseason work but instead agreed to extend the 2008 panel until these negotiationswere completed.
As a result of the negotiations leading to the continuation of the existing panel and based on his position on this panel, the Complainant was offered a new contract of employment from 26thFebruary 2009 to 26thAugust 2009.
The issue of the formation of a permanent seasonal panel, was the subject of a Labour Court hearing [LCR 19685], following which the Respondent agreed to continue the existing panel until final discussions on the formation of the permanent panel were concluded. These discussions were protracted and extended over a period of time. As a result the Complainant's employment continued intermittently until 23rd November, 2011 at which time his employment was terminated.
As the Complainant did not meet the specific criteria for placement on the permanent panel, he applied for an advertised temporary seasonal general operative panel in late 2011/ early 2012. By letter dated 10thFebruary, 2012 the Complainant was placed on the temporary panel at no. 33. As applicants are made offers of employment based on their position on the panel the Claimant was not offered seasonal employment with the Council as his position on the panel was not reached.
Operative Date of the Claim
The Complainant contended before the Court that his complaint of penalisation was referred on 18thSeptember 2012, being the date he appealed the first Rights Commissioner Decision. For the following reasons the Court cannot accept this contention.
The hearing before the Rights Commissioner on 19thJuly 2012 dealt with the alleged contraventions of Section 6, 9 and 11 of the Act. The Rights Commissioner found against his claims. The Complainant appealed this decision to the Court, the appeal hearing was held on 5thSeptember 2013. However, as the Court found that the appeal related not to the Decisions of the Rights Commissioner under sections 6, 9 and 11, but to a new claim, one that had not been before the Rights Commissioner, it could not deal with his appeal.
Subsequently, the Complainant referred a claim pursuant to Section 13 of the Act to the Rights Commissioner on 23rdOctober 2013. The Court finds that is the operative date of the claim that’s before the Court.
Summary of the Complainant’s Case
In his complaint under the Act to the Rights Commissioner , the Complainant contended that his dismissal on 23rdNovember 2011 constituted penalisation for invoking the Act previously.
In his submission to the Court the Complainant stated that around the beginning of February 2012 and before the commencement of the 2012 Roadworks Programme, four temporary general operatives were employed by the Respondent, excluding him. Furthermore, in August 2013 the Respondent commenced further works on the Roadworks Programme, temporary workers were selected from the 2012 panel, however, due to his position at 33 on the panel, he was not selected, this he contended constituted further penalisation contrary to Section 13 of the Act.
Furthermore the Complainant stated that by letter dated 1stAugust 2012 he was informed by the Respondent that he was being removed from the register of employees.
The Law
- 13.—(1) An employer shall not penalise an employee—
- (a) for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part,
- (b) for having in good faith opposed by lawful means an act which is unlawful under this Act,
- (c) for giving in any proceeding under this Act or for giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a) or (b), or
- (d) by dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under s. 9 (3).
The Complainant relies upon paragraph (d) of this subsection.
Did the Complainant have “Locus Standi” when he initiated his claim?
It appears that the Respondent’s objection to the admissibility of the within claim is grounded on its contention that the Complainant’s employment ceased on 23rdNovember 2011 therefore he was not an employee at the time he referred it. That submission is misconceived. The Act provided a statutory meaning to the word “employee” that meaning is contained in s.2 of the Act as follows: -
- “employee” means a person of any age, who has entered into or works under(or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer and, for the purposes of this Act, a person holding office under, or in the service of, the State (including a civil servant within the meaning of theCivil Service Regulation Act 1956) shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority, a harbour authority, the Eastern Regional Health Authority, the Northern Area Health Board, the East Coast Area Health Board or the South-Western Area Health Board, a health board or vocational education committee shall be deemed to be an employee employed by the authority, health board or vocational education committee, as the case may be;[emphasis added]
The words emphasised make it clear that a person who is not in present employment can nonetheless be an employee within the statutory meaning of that term if he or she has previously been in employment.
If the entitlement of a person to bring proceedings under the Act was contingent upon being in present employment an absurd result could ensue in many cases. In the case of a person who was dismissed in circumstances amounting to penalisation he or she could only initiate a claim under the Act after their employment had ceased and their formal status was that of an unemployed person. If that formal status operated so as to deprive such a person of the right to initiate a claim the very purpose of Section 13(1)(d) of the Act would be subverted. The Act places no limitation on the retention of employee status after the cessation of actual employment, other than, the application of the statutory time limit will, in practice, extinguish any stale claim in respect to an act or omission that occurred while in employment.
At the time the claim was referred to the Rights Commissioner under the Act - 23rdOctober 2013, the Complainant was on the 2012 panel. In bothWilliam Beary v Revenue Commissioners[2011] 22 ELR 137andDepartment of Foreign Affairs v A Group of Workers[2007] ELR 332 this Court held that breaks in the Claimants’ employment of varying duration could properly be regarded a periods of layoff. In both cases the Claimants were casual workers who were members of a panel from which they were provided with work as and when required. On each occasion on which their employment ended they returned to the panel with the expectation of recall.
The essential rationale for the decisions inWilliam Beary v Revenue CommissionersandDepartment of Foreign Affairs v A Group of Workerswas that the use of a panel gives rise to an expectation of further employment and that when one assignment ended the employer must have anticipated the probability of the workers in question being re-employed. The factual matrix in the instant case is similar.
Each period of employment was treated as a period of fixed term employment. It would appear to be accepted that the period of inactivity between assignments was regarded as a period of lay-off, since his placement on the panel created a realistic expectation that he would later be recalled when the need for further assignments arose. In that way the continuity of the Complainant’s employment was preserved within the meaning of the First Schedule of the Minimum Notice and Terms of Employment Act 1973-2005 which, in accordance with Section 9(5) of the Act, is to be used for the purpose of computing continuity of service.
Therefore the Court is satisfied that the Complainant in the instant case has“locus standi”, therefore the Court must now consider the claim of penalisation submitted under Section 13 of the Act.
The Claim
In relation to the Complainant’s removal from the register of employees, the Respondent submitted that the letter of 1stAugust 2012 was related to his superannuation entitlements only and had no other significance. The letter was not furnished to the Court, therefore it is not possible to find a causal link between this document and the alleged act of penalisation.
The case before the Court is that the Complainant was penalised contrary to Section 13 of the Act in not being offered employment from the panel as he was placed at number 33 on 10thFebruary 2012, this action he contends was so as to avoid him from accruing a contract of indefinite duration under section 9(3) of the Act. This action was clearly outside the purview of the statutory time limits under the Act.
However, the Complainant also contends that he suffered penalisation in not being offered work in August 2013, when temporary workers were taken from the 2012 panel, however, due to his position at 33 on the panel, he was not selected.
He contends that had he been employed at that time he would have accrued an entitlement to a contract of indefinite duration. He contends on those facts alone that the motive or reason for not offering him employment was to deny him an opportunity to obtain such a contract.
It is clear that the reason why the Complainant did not obtain work in August 2013 was because of this ranking on the panel from which employees were drawn at that time. Hence, the essence of the Complainant case is that he suffered a detriment by being ranked as number 33 on that panel.
The panel in question was constituted at the beginning of 2012. The Complainant was informed of his ranking by letter dated 10thFebruary 2012. It must have been obvious to the Complainant and to the Respondent from past experience, at the time that the panel was created, that a person with such a ranking would not obtain employment during its currency.
InMinister for Finance v Public Service Executive Union[2007] ELR 36. Laffoy J pointed out that a statutory time limited should be applied by analogy with the limitation periods under the Statute of Limitations 1957. It is well settled that a limitation period starts to run from the date on which the cause of action accrues.
The point at which a cause of action accrues was considered by the Supreme Court inHegarty v O’Loughran[1990] 1 IR 148. Here Griffen J stated as follows: -
- “The period of limitation therefore begins to run from the date on which the cause of action accrued, i.e. when a complete and available cause of action first comes into existence. When a wrongful act is actionable per se without proof of damage, as in, for example, libel, assault, or trespass to land or goods, the statute runs from the time at which the act was committed. However, when the wrong is not actionable without actual damage, as in the case of negligence, the cause of action is not complete and the period of limitation cannot begin to run until that damage happens or occurs.”
The real detriment suffered by the Complainant was the ranking that he received on the 2012 panel. The Complainant’s failure to obtain further employment in August 2013 was the inevitable and foreseeable consequence of that detriment. If that ranking was for the purpose of preventing him from obtaining a contract of indefinite duration it was actionableper se. If, as the Complainant believed, his placing on the panel was an act of penalisation nothing in the Act could have required him to delay in initiating a claim until vacancies were filled from the panel. In these circumstances it follows that any cause of action that the Complainant may have had had under Section 13 of the Act accrued, at the latest, in February 2012.
The within claim was presented in October 2013. At that stage it was plainly out of time in respect of his alleged dismissal on 23rdNovember 2011 and his placement on the panel that occurred in February 2012.
Determination
In these circumstances the within claim is statute barred by operation of Section 14 of the Act. Accordingly the decision of the Rights Commissioner must be affirmed and the appeal disallowed.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
17th December, 2014.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.