FTD157

FULL RECOMMENDATION

FTC/14/23

DETERMINATIONNO.FTD157

(R-122399-PE-11/GC)

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003

PARTIES :

NATIONAL UNIVERSITY OF IRELAND GALWAY
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)

- AND -

JOHN F CUNNINGHAM
(REPRESENTED BY JAMES DORAN B.L.
INSTRUCTED BY BUTLER MONK SOLICITORS)

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Ms Doyle
Worker Member: Ms Tanham

SUBJECT:
1. Appeal of Rights Commissioner's Decision No: r-122399-PE-11/GC

BACKGROUND:

2. This case is a joint appeal of Rights Commissioner's Decision No: r-122399-PE-11/GC which issued on 12th May 2014. The Employee and the Employer appealed the Rights Commissioner's Decision on 5th June 2014 and 6th June 2014 respectively in accordance with Section 15(1) of the Protection of Employees (Fixed-Term Work) Act, 2003. A Labour Court hearing took place on 11th March 2015. The following is the Court's Determination:

DETERMINATION:

This is a joint appeal by Mr John F. Cunningham and the National University of Ireland Galway against the Decision of a Rights Commissioner which found that his complaint under section 6 of the Protection of Employees (Fixed-Term Work) Act 2003 (the Act) was in time however, she held that it was not well founded.

For ease of reference the parties are given the same designation as they had at first instance. Hence Mr John F. Cunningham will be referred to as “the Complainant” and National University of Ireland Galway will be referred to as “the Respondent”.

The Complainant appealed the decision contesting the Rights Commissioner’s findings that the claim was not well founded and the Respondent, while accepting the latter decision, appealed the finding that the claim was submitted within the statutory time limits provided by section 14 of the Act.

At the Rights Commissioner hearing the Complainant claimed that his service with the Respondent between 1998 and 2008 was not recognised for pension purposes and accordingly, he was treated less favourably than a permanent employee, in breach of section 6 of the Act.

The complaint was referred to the Labour Relations Commission Rights Commissioner Service on 11^thMay 2011, it was heard over two sittings, on 27^thJune 2013 and 20^thNovember 2013 and the Rights Commissioner issued her decision on 12^thMay 2014.

Background

The parties to this case were the subject of separate proceedings under the Act, see Determination No FTD156 where the full background to the case is contained therein.

Briefly, the case concerns the Complainant who commenced working as a Lecturer in the Respondent’s Industrial Engineering Department in the academic year 1998/99, in August 2008 he was furnished with a fixed-term contract for the academic year 2008/2009. Thereafter, he was employed on a part time basis which continued until he retired on 12^thMay 2011.

The question of the Complainant’s status was in contention between the parties. The Complainant contended that he has been continuously employed by the Respondent on a series of fixed term contracts for each academic year from 1^stOctober 1998 up to May 2011 as a Lecturer mostly in the Industrial Engineering Department.

The Respondent submitted that the Complainant was a self-employed contractor on a contract for services basis up until late 2008. In August 2008 he became an employee of the University and was issued with a fixed-term contract for one year to expire on 31^stJuly 2009. Thereafter he was employed on a casual basis until his retirement in May 2011.

Summary of the Complainant’s Case

Mr J Doran B.L. instructed by Butler Monks Solicitors submitted that the Complainant was an “employee” of the Respondent employed on successive fixed term contracts since 1998. He contended that the Complainant was entitled to be treated no less favourably than a permanent employee in terms of his pension entitlements during the period 1998 until 2008, i.e. his claim under section 6 of the Act relates back to 14^thJuly 2003 when the Act came into law until 1^stAugust 2008 when the Respondent recognised him for inclusion in the pension scheme for the first time.

Mr. Doran contended that the denial of the Complainant's rights under the Act constitute a continuum or a "chain of events". He stated that the Court and the Equality Tribunal in exercising their jurisdiction under the Equality Acts have found that discrimination cases may involve a series of alleged incidents, some occurring more than six months before the complaint is referred. He said that quite often complaints are made about successive discriminatory incidents where the most recent was in time but others were not. The cases disclose that in such situations the complaints that arose before the six months will be deemed to be within time provided the incidents are similar and related. He citedANamed Female EmployeevANamed Respondent,Dec-E2003-001 where the Equality Officer held that the Tribunal had jurisdiction to investigate certain incidents occurring outside the six month time limit because they were related to the most recent act complained of, which fell within the six months before referral.

“… and should also consider if the claimant hasagood arguable case”.

Summary of the Respondent’s Position

Mr John Brennan, Ibec, on behalf of the Respondent submitted that the claim was statute barred as it was not referred within time and disputed the Complainant’s contention that he was discriminated against. The claim was received by the Rights Commissioner Service on 11^thMay 2011, the Complainant retired on 12^thMay 2011 having reached the retirement age of 65 years, having been employed as a direct employee from August 2008 when he was paid fully in respect of his accrued pension entitlements, i.e. from 2008 to when he retired in 2011. Mr. Brennan submitted that as the claim relates to his exclusion from the pension scheme pre 2008, then such a claim is clearly out of time in accordance with section 14 of the Act.

Mr Brennan stated that by letter dated 22^ndJuly 2009 from the Respondent, the Complainant was notified that the Act did not apply to him as a self-employed person pre August 2008, and also informed him that he would not be provided with a pension in respect of that period. Therefore he submitted that both matters had been flagged to him from July 2009. He stated that if the Complainant had an issue with it he should have moved then, and he did not, the Respondent’s position was quite clear in relation to his pension service, and also to his status as self-employed contractor for several years.

Has the Court the jurisdiction to hear the case

The Court must be satisfied that it has the jurisdiction to hear the case, and that includes ensuring that the case was submitted within the prescribed time limit. It is clear that the period over which the within complaint is to be considered will determine the extent of evidence which the parties will be required to tender. Thus the Court is satisfied that significant savings in time and expense could be made by dealing with the appeal, in so far as it relates to the question of whether the case was submitted within time, by way of a preliminary ruling. Accordingly the Court proceeded to deal with the time limit issue as a preliminary matter.

The Law Applicable

Section 14 of the Act makes provision for the referral of complaints under the Act to a Rights Commissioner:-

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

Findings of the Court

The complaint was received by the Rights Commissioner Service of the Labour Relation Commission on 11^thMay 2011. Section 14(3) of the Act provides that a Rights Commissioner (and the Court on appeal) cannot entertain a complaint unless it is presented to the Rights Commissioner within six months of the contravention complained of. By application of that provision only such contraventions of the Act as may have occurred on or after 12^thDecember 2010 could be taken into account for the purpose of awarding redress under the Act. The Complainant seeks to rely on alleged contraventions extending over a period from 2003 to 2008.

The facts of this case are clear, the claim was not referred to the Rights Commissioner within six months of the contravention complained of nor within the extended time, if such an extension had been sought pursuant to Section 14(4) of the Act.

Counsel for the Complainant submitted that what is in issue in this case is a continuing breach of the Act arising from the Respondent’s failure to provide the Complainant with no less favourable treatment than a permanent employee in terms of his pension

entitlement. He submitted that this was a continuing breach of the Act which subsisted up to 2008. In support of this contention Counsel relied upon the decision of this Court in the case ofHSE Dublin North East and Ali Umar FTC/09/28.Particular reference was made to the following section of that Determination:-

“The Complainant was not obliged to bring a complaint to a rights commissioner in order to obtain a contract of indefinite duration; he obtained such a contract by virtue of Section 9(3). In so far as there was a contravention of the Complainant’s legal rights, which would arise if the Respondent could not rely on Section 9(4), it was the Respondent’s failure to acknowledge his status as a permanent employee by operation of law.”

The Court fully endorses the view held by the Court inUmarhowever, failure to acknowledge the entitlement to a contract of indefinite duration which accrued by operation of law must be distinguished from a complaint under section 6 of the Act, which involves an alleged discrete breach of the provisions of the Act.

Furthermore, in support of his contention Counsel for the Complainant, relied uponA Named Female Employeev ANamed Respondent,Dec-E2003-001 where the Equality Officer held that the Tribunal had jurisdiction to investigate certain incidents occurring outside the six month time limit because they were related to the most recent act complained of, which fell within the six months before referral. The Court cannot accept that the circumstances in this case are comparable to the latter case when it is clear that the most recent act complained of, fell prior to 2008 and therefore not within the six months before referral.

Determination

The Court finds that the Complainant’s complaint alleging a breach of Section 6 of the Act is statute barred and accordingly overturns the Rights Commissioner’s decision on that point. Furthermore, as there is no dispute that the Complainant was included in the Respondent’s pension scheme from August 2008 until the date of his retirement on 12^thMay 2011, the Court concurs with the Rights Commissioner’s decision that that complaint was not well founded.

Accordingly the Court upholds the Respondent’s appeal and rejects the Complainant’s appeal.

The Court so Determines.

Signed on behalf of the Labour Court

Caroline Jenkinson
13th April 2015______________________
AHDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.