ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001559

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 24/05/2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and the abovementioned Act, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The complainant submits that she has been in continuous employment with the respondent as an executive engineer on a specified purpose contact (cover for colleague acting in a more senior role or on the filling of his post) since April 2007. She raised the matter of her entitlement to a contract of indefinite duration under the respondent’s grievance procedure and was refused the same on the basis of the provisions set out at s. 9 (4) of the Protection of Employee’s (Fixed Term) Act, 2003 i.e. that objective conditions apply which justify the non-granting of a contract of indefinite duration. The complainant does not accuse the respondent of having failed to discharge it’s obligations under the 2003 Act although it does argue that there can be no objective justification for the non-granting of the CID in this case and that there is no material gain or otherwise accruing to the respondent arising from it’s refusal. A recommendation that the respondent would issue a CID is sought in the matter.

Respondent’s Submission and Presentation:

By way of preliminary issue the respondent submits that “the obtaining of a CID is an entitlement that accrues as a matter of low only and that the Adjudicator cannot therefore make a decision in terms of the granting of a CID under the Industrial Relations Acts. The only place whereby the legal entitlement to a CID arises isunder the Protection of Employees (Fixed Term Work) Act, 2003. It is submitted that this claim is not properly before the Adjudicator and therefore the Adjudicator has no jurisdiction to hear the claim.” The complainant submitted a claim for a CID which was rejected on the basis that she did not meet the criteria for the granting of the same in accordance with the provisions set out at s. 9 of the Protection of Employees (Fixed Term Work) Act, 2003. She was invited to appeal the decision but failed to make an appeal.

Decision:

I accept the point made by way of preliminary issue but would point out that nothing in the 2003 Act precludes me from making a recommendation under the 1969 Act which may or may not be accepted by the parties. Furthermore the respondent itself is not precluded from granting a CID for whatever reason by any of the provisions of the 2003 Act. It seems to me that compelling argument has been made in behalf of the complainant however I am compelled to take the point that no appeal of the respondent’s decision has been made and in those circumstances a recommendation in favour of the complainant would serve to undermine the grievance procedure itself.

Accordingly I recommend that either the complainant complete the internal grievance process and revert (in the event of a negative outcome which seems likely) with a complaint under this Act or that in the alternative she seeks to vindicate her right’s under the 2003 Act.

Dated:   1^st December 2016