FTD1331

Background

On or about the 20^thMarch 2006 the Complainant commenced employment with the Department of Finance as a temporary un-established auditor in the ERDF Financial Control Unit. She tendered her resignation from this position with effect from 23^rdMay 2008. She took up a position with the Department of Enterprise, Trade and Employment on 16 June 2008, as a temporary non-established auditor in the European Social Fund Financial Control Unit (“the ESFFCU”). By Government Order the ESFFCU was transferred from the Department of Enterprise, Trade and Employment to the Department of Education and Skills (“the Respondent”). The complainant was employed on a fixed term contract of employment that terminated on 15 June 2012.

Complaint

The Complainant contends that

• 1. She was employed on a series of fixed term contracts of employment and became entitled by operation of law to a contract of indefinite duration with effect from 16^thJune 2008.
  
  2. That she was treated less favourably than comparable permanent employees
  
  3. that she did not receive the written terms and conditions of her employment

I have considered the submissions of both parties. The Claimant worked on a series of fixed term contracts in different Departments. There was a break in her services in one instance, and the current contract contains objective grounds for the fixed term contract. I do not find the Claim well founded, therefore it fails.

• As regards the written terms claim, on the evidence submitted to me I do not find it well founded, therefore it fails.

Position of the Parties

Complainant’s Position

Contract of indefinite duration

The Complainant argues that she was employed successively by the Department of Finance and the Department of Enterprise, Trade and Employment and consequent upon a Government decision to transfer certain functions between departments, by the Department of Education and Skills. She argues that the total length of the successive contracts of employment on which she was employed exceeded four years. She argues that she accordingly became entitled to a contract of indefinite duration by operation of law in accordance with Section 9(2) of the Act. She argues that section 9(4) of the Act has no application in this case as the Respondent has not made out objective grounds justifying the extension of the fixed term contract of employment beyond the 4 years set out in the Act.

The Respondent’s argues that the Complainant was employed by different employers namely the Department of Finance and the Department of Enterprise, Trade and Employment and consequent upon a Government Decision the Department of Education. It contends that the Complainant therefore was not employed by the same employer on successive contracts of employment and does not come within the scope of Section 9(2) of the Act.

The Respondent further argues that, should the Court hold that the Complainant’s employment was with the same employer, she resigned her position on 23^rdMay 2008 and did not take up employment with the Department of Enterprise, Trade and Employment until 16 June 2008. It submits that the Complainant’s decision to resign her position severs her employment relationship with the employer and breaks her service for the purposes of the Act. It argues that time runs from the commencement of the Complainant’s contract of employment on the 16^thJune 2008. It argues that this was a single contract of employment and was for a period of time that did not exceed four years. It argues that it therefore does not come within the scope of the Act.

The Respondent further argues that the Complainant’s initial contract of employment with the Department of Finance terminated in March 2008. The Complainant remained in the Department of Finance beyond that date and ceased to be a fixed term worker at that time. She was in effect employed on a contract of indefinite duration when she resigned her post on the 23^rdMay 2008 to take up employment with the Department of Enterprise, Trade and Employment with effect from 16 June 2008. It submits that she did this as negotiations on the terms and conditions associated with the contract of indefinite duration had failed to meet her salary expectations and were out of line with what she described as the “market rate” for the work she was performing.

It further argues that the transfer by Government Decision of the Complainant’s employment from the Department of Enterprise, Trade and Employment to the Department of Education and Skills had no legal or material effect of the nature of the Complainant’s contract of employment. It specifically argues that it did not convert a single contract of employment of four years duration into a succession of fixed term contracts of employment that exceed four years in duration.

It further argues that, should the Court find that the Complainant was employed on a series of fixed term contracts of employment that exceeded four years in duration, there were objective grounds for so doing that bring it within the defence set out in Section 9(4) of the Act.

Evidence

Ms Abbott’s Evidence

Ms Abbott gave evidence to the Court. She said that she was at all times treated by the Department of Finance as though she was employed on a fixed-term contract of employment. She said that when her contract of employment with that Department was coming to an end she engaged with her direct superior regarding the options open to her. She said that she was in a very insecure position as she no longer had a fixed term contract of employment nor did she have a contract of indefinite duration. She was told in those discussions that the Department was seeking to keep her in employment and was working on a suitable form of contract. She said it was clear to her that she was not in permanent employment and that this was the view of her superior also. The Department was working on a new contract but was not in a position to put an offer to her that would give her any security. They told her variously that they would give her a fixed term contract of employment and or a contract of indefinite duration. However they also told her that they could not do so without advertising her post. She raised issues with the Department regarding the duration of the contract they would issue to her. She advised the Department that she had secured a four year fixed term contract of employment with the Department of Enterprise, Trade and Employment and that she was seeking a similar arrangement with Finance. When this was not forthcoming she enquired if anything could be done to increase her salary. She was told that the salary was set and that any change to it would require the re-advertising of the post. She said that as time was passing she asked the Mr Casey if the Department was in a position to make a firm offer to her. When she was told it was not she took the job in the Department of Enterprise, Trade and Employment. She asked Mr Casey what she had to do to do that. He said that she had to write a letter of resignation to the personnel department. She said she did that as advised.

Mr Pat Casey gave evidence to the Court. He was Ms Abbott’s direct superior in the Department of Finance. He said that Ms Abbott’s version of events was in line with his recollection of events. He said that he wished to keep her in the Department. He said he entered into discussions with the Personnel Department seeking approval to do so. He said that those discussions were complex as there were cutbacks going on at the time and any decision to keep fixed term workers in employment beyond their contract dates required high level approval. He said that he worked to secure that approval but that it was not forthcoming at the time Ms Abbott resigned from the Department. He said that he advised Ms Abbott that she had to write to the Personnel Department resigning her post. He said that he did not do so in any legal sense. Rather he did so in the sense that that was the way in which she could keep her employment affairs in order. He said that he did not go into the detail of the meaning of this with Ms Abbott. He simply told her that she had to resign. He said that matters relating to terms and conditions of employment were matters for the Personnel Department. His involvement was to ensure that he had operational cover for the audit work that had to be undertaken.

Mr Des O’Leary gave evidence to the Court. He said that Mr Casey raised Ms Abbott’s position with him. He said that he was working on a contract of employment to offer Ms Abbott. He said that he was working on a Contract of Indefinite Duration. He said that he needed approval from Senior Management in the Department to make any offer in this case. He said that he had not received that approval at the time Ms Abbott left the Department. He said that in his view Ms Abbott’s fixed term contract had expired in March 2008. He said that she was effectively employed on a contract of indefinite duration after that date. He said that no one in the Department conveyed this to Ms Abbott. He said that that did not give her security of employment in the Department. He said her employment could be terminated with notice at any time. He said that he was of the view that the discussions he was engaged in with Ms Abbott broke down over the Department’s inability to close the gap between her pay and the market rate. He said that Ms Abbott was required to resign her position with the Department to take up employment with the Department of Enterprise Trade and Employment. He said that a permanent member of staff would not have to so resign and would instead be transferred to that post without compromising or breaking their service with the civil service.

Mr David Gordon gave evidence to the Court. He said that he had a conversation with Ms Abbott when she worked in the Department of Education and Skills. The conversation related to other issues not before the Court. In the course of the conversation he said Ms Abbott said that had she known how the economy was going to develop she would never have left the Department of Finance. He said that the comment was casual in nature and he would not place too much emphasis or take too much from it. He said it was not a formal discussion regarding Ms Abbott’s employment history with the various Departments in which she worked.

The Law

The Protection of Employee’s (Fixed-term Work) Act 2003 is the relevant legislation in this case. Under the Act a contract of employment is defined as follows:

“contract of employment” means a contract of service whether express or implied and, if express, whether oral or in writing but shall not include a contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of theEmployment Agency Act 1971and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract);

“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;

Section 7 of the Act set out the objective grounds upon which an employer may rely whne seeking to show that a succession of fixed term contracts exceeding four years have not been converted into a contract of indefinite duration.s. It states:

(1) A ground shall not be regarded as an objective ground for
the purposes of any provision of this Part unless it is based on
considerations other than the status of the employee concerned as a
fixed-term employee and the less favourable treatment which it
involves for that employee (which treatment may include the renewal
of a fixed-term employee’s contract for a further fixed term) is for
the purpose of achieving a legitimate objective of the employer and
such treatment is appropriate and necessary for that purpose.

(2) Where, as regards any term of his or her contract, a fixed-term
employee is treated by his or her employer in a less favourable
manner than a comparable permanent employee, the treatment in
question shall (for the purposes of section 6(2) ) be regarded as
justified on objective grounds, if the terms of the fixed-term employee’s contract of employment, taken as a whole, are at least as favourable as the terms of the comparable permanent employee’s contract of employment.

Section 9 states

(1) Subject to subsection (4) , where on or after the passing
of this Act a fixed-term employee completes or has completed his or
her third year of continuous employment with his or her employer or
associated employer, his or her fixed-term contract may be renewed by
that employer on only one occasion and any such renewal shall be for
a fixed term of no longer than one year.

(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 4 years.

(3) Where any term of a fixed-term contract purports to contravene
subsection (1) or (2) that term shall have no effect and the contract
concerned shall be deemed to be a contract of indefinite duration.

(4) Subsections (1) to (3) shall not apply to the renewal of a
contract of employment for a fixed term where there are objective
grounds justifying such a renewal.

In interpreting the Directive and the Act this Court must have regard to
the Decisions of the CJEU and of the Irish High and Supreme Courts. Taken
together those Courts have set out how the law should be interpreted and
applied in an individual case. The current state of the law in this regard
is set out below.

The existence of objective grounds justifying the renewal of a fixed-term
contract (and by extension the operation of Section 9(3)) is to be
ascertained by reference to the circumstances pertaining at the
commencement of the contract in question. This was made clear by Hanna J in
Russell v Mount Temple Comprehensive School [2009] IEHC 533.

It is well established in the jurisprudence of the CJEU, and of this Court,
that Section 9(4) of the Act allows for a derogation from what is an
important social right derived from the law of the European Union. It must,
therefore, be construed and applied strictly against the person seeking to
rely on the Subsection (see the dictum of the CJEU to that effect in Case
476/99 Lommers v Minister van Landbouw, Natuurbeheer en Visseri [2002]
IRLR 430, (at par 39). Moreover, since it operates as a defence to a claim
that would otherwise succeed, it is for the Respondent to establish on
cogent evidence every element of that defence.

There is a wealth of jurisprudence at both National and European level on
the test to be applied in considering if a plea of objective justification
can succeed. It is clear from this jurisprudence that mere generalisations
in relation to the effect of a measure cannot be sufficient to make out a
defence of objective justification (Case 171/88 Rinner-Kuhn v FWW
Spezial-Gebaudereinigung GmbH & Co. KG [1989] ECR 2743).

In order to make out the defence it is for the Respondent to identify a
real need and to show that the less favourable treatment is effective in
meeting that need. The Respondent must then go on to prove that the effect
of the less favourable treatment on the employee is proportionate to the
need of the employer which it is intended to achieve. This requires the
Court to balance the detriment suffered by the worker against the benefit
accruing to the employer. The Respondent must then establish that there
are no alternative means by which the objective in view could be achieved
which have a less deleterious effect (Inoue v NBK Designs [2003] 14 E.L.R..
98).

In Determination FTD1234 UCD and Dr Michael O’Mahony, this Court, having
reviewed the applicable jurisprudence, synopsised the principles involved
as follows: -

1. The Framework Agreement recognises that the benefit of stable
employment is a major element in the protection of workers and it is
only in certain circumstances that fixed-term employment contracts
are liable to respond to the needs of both employers and workers;
(C-212/04 Adeneler and Ors. v Ellinikos Organismos Galaktos [2006]
IRLR 716, at par 62)

2. The successive use of fixed-term contracts is a potential source of
abuse to the disadvantage of workers;(Adenleler, par 63)

3. The Framework Agreement lays down a minimum number of protective
provisions designed to prevent the status of employees from being
insecure. One of the measures intended to achieve that aim is the
requirement that there be objective reasons which justify the renewal
of fixed-term employment relationships;(Adeneler, par 65)

4. The concept of objective reasons must be understood as referring to
precise and concrete circumstances characterising a given activity,
which are capable in that particular context of justifying the use of
successive fixed-term employment contracts;(Adeneler, par 69)

5. These circumstances may result, in particular, from: -

a. The specific nature of the tasks performed and;

b. The inherent characteristics of those tasks or;

c. The pursuit of a social policy objective of the Member State
(Adeneler, par 69-70)

6. The justification relied upon must be based on objective transparent
criteria which in fact respond to a genuine need, are appropriate for
achieving the objective pursued and are necessary for that purpose.
(C-307/05, Del Cerro Alonso v. Osakidetza-Servicio Vasco de Salud
[2007] IRLR 911, at par 58)

7. Recourse to fixed-term employment contracts solely on the basis of a
general provision, unlinked to what the activity in question
specifically comprises, does not permit objective and transparent
criteria to be identified in order to verify whether the renewal of
such contracts actually responds to a genuine need, is appropriate
for achieving the objective pursued and is necessary for that
purpose.(Adeneler, par 74 and Alonso, par 55)

Findings of the Court

The Complainant contends that she worked for the same employer on successive fixed term contracts of employment for a period in excess of 4 years. The Respondent contends that the Complainant worked for two different government departments, that her employment was not continuous, that she worked on a single contract of employment for the latter department and or that there were objective grounds justifying its decision to offer the complainant successive fixed term contracts of employment.

Two Employers

The Respondent’s initial contention is that the Complainant worked for two different employers. In this regard it argues that each government department is a separate employer for the purpose of the Act. It argues that Ministers of the Government and their respective Departments are not associated employers for the purposes of the Act. It argues from this that the Complainant was employed by two separate and distinct legal entitles and that there can be no continuity of service across those employments. It argues that the Complainant’s employment with the Department of Education and Skills did not exceed 4 years and accordingly does not come within the scope of Section 9(2) of the Act.

The Complainant argues that she worked for a period in excess of four years for one government in two different departments on successive contracts of employment. She argues that her employment comes within the scope of Section 9(2) of the Act.

The Court finds that the Act contains its own dictionary for the purpose of interpreting its terms. It states

• 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

Resignation

The Respondent argues that the Complainant resigned her position with the Department of Finance and that by doing so voluntarily left her employment.

The Complainant argues that she was told by the Respondent that she had to resign her position with the Department of Finance to take up a post with the Department of Enterprise Trade and Employment. She submits that such a requirement was itself unlawful under the Act and the Respondent cannot rely upon it to defeat her claims under the Act.

The Court finds that both Mr Casey and Mr O’Leary, giving evidence on behalf of the Respondent, stated that the Complainant was required to resign her position with the Department of Finance to enable her to take up employment with the Department of Enterprise, Trade and Employment. The Court finds that both witnesses formed this view on the basis that they each genuinely, though mistakenly, believed that each of the Departments was a separate employer and that the Complainant was required to terminate her employment with one in order to take up employment with the other. Both of them were in positions of authority over the Complainant. Her immediate superior, Mr Casey, told her that that was what was required of her and she acted on that instruction.

The Court takes the view that the Respondent cannot instruct the Complainant to behave in a particular way that disadvantages her under the Act and then penalise her for having done so. The Complainant did not choose to resign her post. She was instructed that she was required to do so by people in authority over her. She acted on that instruction. However the instruction itself was based on the mistaken belief that each of the Departments is a separate employer. However for the purposes of the Act the Complainant was employed by the Government irrespective of the particular department in which she was working. On that basis she was not required to resign from one department to take up employment with another as the Government continued as her employer for the purposes of the Act.

Subsection (5) of s.9 of the Act imports the provision of the First Schedule of the Minimum Notice and Terms of Employment Act 1973 for the purpose of determining if service is to be regarded as continuous. In relevant part the First Schedule of that Act provides: -

COMPUTATION OF CONTINUOUS SERVICE.

Continuity of Service

1. The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by—

• ( b ) the employee voluntarily leaving his employment.

The Court distinguishes these circumstances from those that applied in Meath County Council v Reilly. In that case the local authorities in question were separate legal entities. Mr Reilly decided, for personal reasons, to resign his post with one county council to take up employment with another in order to improve his position. By doing so he voluntarily left one employer to take up employment with another and thereby took himself outside the protection of the Act. That is not the position in this case. The Complainant was instructed to resign her position with the Department of Finance in order to take up employment with the same employer in another Department. The requirement on the Complainant to resign distinguishes this case from Meath County Council v Reilly as she did not wish to voluntarily end her employment but rather continue it with another Department.

Break in Employment

The Respondent argues that the Complainant did not proceed immediately to take up employment with the Department of Enterprise, Trade and Employment after she resigned from the Department of Finance. It submits therefore that the Complainant’s employment was not continuous.

The Court finds that the Respondent instructed the Complainant to resign her post with the Department of Finance and that having done so it cannot seek to benefit from the consequences of its own unlawful instructions. Had the Complainant not been so instructed by her superiors she would have proceeded immediately to the post she was taking up in the Department of Enterprise, Trade and Employment. Accordingly the Court finds that it would be grossly unfair to the Complainant to hold her accountable for a decision forced on her by the Respondent upon the consequences of which it seeks to disbar her from vindicating her rights under the Act.

The Court, in the circumstances in which it came about, considers the period of time between the time her employment with the Department of Finance ended and the time she commenced working for the Department of Enterprise Trade and Employment as a period of lay-off that did not break the Complainant’s continuity of service.

The Court therefore finds that the Complainant was employed by the Government on a series of continuous fixed term contracts of employment that exceeded four years in duration. The Complainant therefore became entitled to a contract of indefinite duration by operation of section 9(2) of the Act unless section 9(4) applies in this case.

Objective Justification

The Respondent relies on section 9(4) and advances the following objective grounds justifying the decision to issue the Complainant with a further fixed-term contract of employment in June 2008. In its submissions to the Court it states: -

• This contract contained an objective ground relating to its fixed nature: namely that the employment would cease on the 16^thday of June 2012. The reason for this was clearly stated to be that the Unit within which the Claimant was working was established for the purposes of providing audit services for the ESF within the years 2008 to 2011 inclusive, and the requirement for such services would cease at the close of 2011. The contract continued into mid-2012 to enable the audit work for 2011 to be completed. It was clarified to Ms. Abbott in a letter from David Gordon that her contract would be up until 15 June 2012.

The Audit Authority function includes ensuring that audits are carried out on the operations to verify expenditure declared to the European Commission and to verify the effective functioning of the management and control systems of the operational programme. These funds and the spending of same need only be audited for the period of time within which they were to be spent, and therefore the need for auditing expired at the end of that period of time, namely 2011. However the Audit function would continue into 2012 to draw up the final report. The Complainant was employed to carry out audit work associated with the 2007 – 2013 round of ESF funds and accordingly her employment terminated with the termination of that programme.

The Complainant submits that the ESF fund is a standing fund of the European Union. The fund is allocated to member states in rounds. Each round is structured to address an identified need within the European Union and all states are invited to apply for support towards ends from the fund. The size of the fund and the amount allocated to an individual member country varies from varies over time. However the fund continues and Ireland has been allocated significant levels of funds under each round of funding since it joined the European Union. It continues to do so at present. While the objectives of the fund change the need for an audit facility to ensure monies drawn are allocated for the purposes for which they have been granted remains constant. The European Union has advised Ireland that the audit function should be carried out by permanent employees. At the time the Complainant was employed this advice had not been acted upon. She submits that this demonstrates that she was filling a fixed and permanent need of the Government to audit funds drawn down from the European Union under a standing scheme that continues in place to date and that is likely to continue for the foreseeable future.

The Court finds that the Complainant was employed to audit funds, ERDF or ESF, drawn down from the European Union. Those funds are permanent in nature though they are managed through operational programmes that run for set periods of time. However it was common case that while operational programmes change and develop the fund continues and the state consistently makes applications for funding under those programmes. It was also common case that the audit of those funds remains a constant feature of their administration in the state. The Court also notes that the auditing of ESF and ERDF funds continues to date.

On that basis the Court finds that the Respondent has not made out the elements of the defence afforded to it by Section 9(4) of the Act. For objective grounds to be made out the Respondent must show that the use of successive fixed term contracts of employment is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.

It is clear that auditing funds drawn down from various European funding streams is a legitimate objective of the employer. However it is clear the requirement to audit the funds is not confined to any one operational program. Each program is succeeded by another and the requirement for audit continues. The requirement for audit capacity therefore is permanent and cannot justify the use of successive fixed term contracts of employment as they are neither appropriate nor necessary for that purpose.

Accordingly the Court finds that the Respondent has failed to make out each of the elements of the defense offered in Section 9(4) of the Act. Accordingly the Court finds that the Respondent cannot avail of Section 9(4) of the Act to defeat the Complainants rights under section 9(2) of the Act.

Decision

The Court determines that the complaint is well founded and that the Complainant became entitled by operation of law to a contract of indefinite duration with effect from 16 June 2008.

The Court orders the Respondent to reinstate the Complainant with effect from 16 June 2012.

Section 6

The Complainant states that she treated less favourably than a named permanent employee with regard to her rate of pay. She submits that she performed the same work as the comparator but was paid considerably less by way of salary and benefits.

The Respondent disputes the Complaint.

Both parties presented substantial documentation to the Court outlining the differences in the salaries paid to the Complainant and the comparator.

Findings

After 1995 newly employed Established Civil Servants pay a 5% pension contribution. Prior to that date their salary scales were abated by 5% to reflect the fact that they did not make a pension contribution. When this changed in 1995 the 5% reduction in pay was reversed and the salary scale for new established Civil Servants increased to reflect that contribution.

The Complainant was appointed to the post of non-established temporary Auditor on a pay scale that mirrored that of the Higher Executive Officer scale. She was employed on the abated scale. She did not pay a personal pension contribution to the scheme. Accordingly her salary reflected the fact that she did not pay a personal pension contribution.

The Comparator with whom she compares was in receipt of a principal private secretary allowance that he carried with him from a previous post he held in the Civil Service. He continued to enjoy that allowance after his period as a principal private secretary came to an end. Payment of the allowance was not related to his status as an established civil servant. Many established civil servants with which he worked had never served as principal private secretaries and accordingly were not paid the allowance. The Court finds therefore that this element of the difference between the Complainant’s and the Comparators pay was related to factors unconnected with the Complainant’s status as a fixed term worker.

Another element of the difference between the pay of the Complainant and that of the Comparator consisted of a pay increase introduced by way of a collective agreement on the restructuring of grades that came into effect in 1995. Under the scheme a new higher scale was introduced. 30% of the Higher Executive Officer grade was eligible for assignment to the higher scale. The scheme set out the manner in which such staff would be appointed to that scale and the timescale in which the assignment would take place. The Comparator benefitted from such an assignment. His scale reflected this arrangement.

The Court finds that this element of the Complainant’s pay was salary scale related and did not arise of the difference in status of the Complainant and the Comparator.

The Court finds therefore that the differences in pay of the Complainant and the Comparator were not related to the Complainant’s status as a fixed term worker and that they were objectively justified in the circumstances of this case.

Decision

The Complainant is not well founded. The appeal is rejected.

Promotion

The Complainant states that she was ineligible for a permanent post to be filled by secondment based in the National Public Procurement Operations Unit owing to her status as a fixed-term worker. This incident occurred in 2009. The Respondent argues that the Complaint is statute barred as the Complainant did not bring the complaint to the Rights Commissioner until 26 March 2012.

Section 14(3) of the Act states

• (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.

Decision

The Court does not have jurisdiction to entertain the complaint.

Determination

The Court finds that the complainant became entitled by operation of law to a contract of indefinite duration with effect from 16 June 2008. The Court orders the Respondent to reinstate the Complainant with effect from 16 June 2012.

The appeal in this regard is upheld.

The Court, on the facts before it, determines that the Respondent did not contravene section 6 of the Act. This aspect of the complaint is not well founded and the appeals in this regard are not upheld.

The Court so determines.



Signed on behalf of the Labour Court



Brendan Hayes
JMC______________________
23rd December, 2013Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.