ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001026

Complaint/Dispute for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00001411-001	11/12/2015

Date of Adjudication Hearing: 22/03/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 and following the referral of the complaint/dispute to me by the Director General, I inquired into the complaint / dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint/ dispute.

Background

The Complainant is employed as an Engineer since 2002. She is paid €2,159 per fortnight. She has claimed that she is entitled to a contract of indefinite duration.

Complainant’s Submission and Presentation:

She was appointed in a permanent post of Assistant Engineer in 2004. She was appointed to a permanent post of Executive Engineer on 13^th February 2006. This is her substantive post. On 23^rd June 2008 she was offered a fixed term contract as Resident Engineer. She became entitled to a contract of indefinite duration in June 2012. On 31^st January 2015 the role of Resident Engineer ceased. By September 2015 she knew for certain that no contract of indefinite duration would happen.

She had a series of Fixed Term Contracts over a period of 6 yea On s and 7 months and would have been entitled to a Contract of Indefinite Duration. The last of the Fixed Term Contracts was not renewed and as a result she is at a loss of a site allowance which was paid as part of the Contract and this is an on-going loss. The annual site allowance is €7,800 although at the time of my last Fixed Term Contract she was working a 4 day week and receiving €6,400. Her Trade Union Representative lodged a "Pay" Claim under the 1991 Payment of Wages Act - r-157902-pw-15 and the Hearing of that case has been adjourned so that this case under the 2003 Act can be lodged and then the two cases heard together. The assumption made prior to receipt of legal advice was that the Payment of Wages Act case could deal with all of this but a separate claim under the 2003 Act in fact seems to be required. There should be no difficulties with the six month time limit as this can be extended by another 12 months at the discretion of the Adjudication Officer if he is satisfied that the failure to present within the normal 6 month period was due to reasonable cause. The Respondent has been fully aware of the issues herein for the last 12 months. They are at no loss whatsoever by dealing with the 2003 Act claim in conjunction with the 1991 Act claim, at this stage.

She has sought an extension to the time limit as she had a serious amount of engagement with the Respondent before she knew for certain that she would not get the contract of indefinite duration.

She is seeking a contract of indefinite duration as Resident Engineer with effect from June 2012.

Respondent’s Submission and Presentation:

The Respondent stated that the Complainant was not a fixed term worker and is not covered by this Act. She was a permanent employee. Her substantive position is that of Executive Engineer. He cited the Rights Commissioner decision r-129578-ft-13 in support of their position.

Also the alleged contravention was January 2015 and the complaint was not presented to the Commission until 11^th December 2015 therefore this claim is out of time.

The Complainant was a permanent Executive Engineer since February 2006. She was appointed a Resident Engineer (Temporary) from June 2008 to January 2015. This post was continued by a series of Manager’s Orders. In January 2015 she reverted to her substantive post of Executive Engineer.

The Complainant is not covered by this Act and the claim is out of time.

Findings

I note that the Complainant was a permanent Executive Engineer since February 2006.

I note that in June 2008 she was appointed a Resident Engineer (Temporary) and this post continued until 31^st January 2015.

I note that after that date she reverted to her substantive post of Executive Engineer.

Therefore I must find that she is not a fixed term worker and so is not covered by this Act.

I find that she has no “Locus Standi”.

Therefore I find that this claim is misconceived.

Decision:

Section 41(4) of the Workplace Relations Act 2015 and under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that the Complainant was not a fixed term worker and so has no “Locus Standi”.

I have decided that this complaint is misconceived and so it fails.

Dated: 28 April 2016