FTD1414

The case came on for hearing on 3rd April 2014. In its submission to the Court, SIPTU, representing the Complainant, stated that it had withdrawn its appeal against the Rights Commissioner’s Decision on the complaint that the Respondent infringed Section 8 of the Act. Accordingly, the appeal before the Court relates to the Rights Commissioner’s finding regarding the alleged infringement of Section 10 of the Act.

Background

The Complainant applied for and was appointed to the position of “violin tutti” on June 6^th2010 on a two year fixed-term contract of employment. She maintains that she took up the post on the understanding that it would lead to an appointment to a permanent post. The Respondent denies that any such commitment was given to the Complainant. The Respondent terminated her employment on 6th May 2012.

The Complainant states that during her employment with the Respondent a number of posts were advertised. She asserts that she was not made aware of those vacancies and accordingly was deprived of the opportunity to apply for a permanent job. She further argues that had her employment been extended in accordance with the undertakings she was given before taking up employment she would have been eligible to apply for a position in the Orchestra that was advertised in July 2012. She states that, by its actions, the Respondent infringed her entitlements under Section 10 of the Act.

The Respondent argues that it complied with Section 10 of the Act. It argued that all vacancies in the Orchestra are advertised on the company intranet with hard copies posted on notice boards and at the Concert Hall, the location in which the Orchestra rehearses. It argues that it thereby met its obligations under the Act.

Findings of the Court

There is considerable disagreement between the parties regarding the commitments given by the Respondent to the Complainant prior to her taking up a position with the Orchestra. Those matters however are not relevant to this complaint.

It is common case that the Complainant was employed as a fixed-term worker and comes within the scope of the Act.

Section 10 of the Act states

10.—(1)An employer shall inform a fixed-term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees.

(2)The information referred to insubsection (1)may be provided by means of a general announcement at a suitable place in the undertaking or establishment.

(3)As far as practicable, an employer shall facilitate access by a fixed-term employee to appropriate training opportunities to enhance his or her skills, career development and occupational mobility.
The Respondent states that it advertises all vacancies on the internal intranet and that it places notices on notice boards at suitable locations in the company and at the Concert Hall which is the relevant place of work of the Complainant.

The Court notes that the purpose of Section 10 is to ensure that a fixed-term worker has the same opportunity to secure a permanent position as other employees. In that regard the Court notes that it is the policy of the Respondent to place notifications regarding vacancies in locations that are equally accessible to fixed-term workers and other employees. The Court also notes that there is no limitation on the positions for which fixed-term workers, as distinct from other employees, may apply. In that regard the Court finds that the Respondent complied with the provisions of Section 10 of the Act in the manner in which it ensured that the Complainant, a fixed term worker, had the same opportunity to secure a permanent position as other employees.

Accordingly, the Court finds that the complaint is not well-founded and affirms the Decision of the Rights Commissioner.

In coming to this Decision the Court has taken into account the submissions of both parties to this dispute, the information and evidence presented in the course of the hearing and the supplementary submissions that were received by the Court within the seven day time limit allowed to the parties to so do.

Determination

The complaint is not well-founded. The Decision of the Rights Commissioner is affirmed. The appeal is not allowed.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
25th July, 2014______________________
JFDeputy Chairman



NOTE

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