ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002967

Complaint for Resolution:

Date of Adjudication Hearing: 16/11/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

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

Complainant’s Submission and Presentation:

The complainant has been an employee of the respondent for almost eleven years.

She says she has been treated unfairly due to being a part time employee and sought comparable conditions of employment with co-workers who are full time.

She says she has no fixed hours and these can vary from eight in one week for to twenty in another.

She complains that she has a lack of set hours and no guarantee of work, no pay scale, no sick pay, but has had to accept a decrease in wages in line with the public service emergency measures without any of the benefits of being a public servant.

Her co-workers who are full time also get a paid day off on Good Friday and on Christmas Eve.

She feels she should be classified as a permanent part-time and not as a casual employee.

Respondent’s Submission and Presentation:

The respondent says that the decisive consideration is the ‘casual’ nature of the complainant’s requirement to attend for work. It is accepted that her contract of employment is not ‘casual’ per se and that she does have a contract of indefinite duration but she has the right to refuse to attend for work unconditionally and without any consequences to her.

This brings her within the ambit of the decision in a case of the CJEU C-313/02 Nicole Wippel v Peek & Cloppenburg GmbH & Co KG (12^th October 2004.)

The issue in that case was whether a part time employee can be compared to a full time worker, where the part time worker has the right to refuse work, and where the hours of work are not fixed but are dependent on the amount of work to be done. The full case was opened at the hearing.

Also, a case by the current complainant on the same facts and legislation was previously heard by a Rights Commissioner who dismissed the claim on the basis of the authority in Wippel.

The respondent further submitted that under the Protection of Employees (Part-Time Work) Act 2001 the terms on which a comparison may be made are defined in section 7 (3) where it states a requirement that;

1. Both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work

2. The work performed by one of the employees concerned is of the same or similar nature and any differences in the work performed are ‘of small importance in relation to the work or occur with such irregularity as not to be significant..

The respondent submits that for a complaint to succeed the part-time employee must show that she has suffered less favourable treatment by reference to a comparable full time employee but that on the basis of the authority in Wippel, and the differences in her capacity to decline to work as between a full time employee there is no valid comparator.

The respondent made a detailed submission on the other issues such as the lack of set hours, the absence of an incremental scale, and that she does not have access to sick pay.

These (or some of them) only arise of course if the complaint is valid under the terms of the Protection of Employees (Part-Time Work) Act 2001

Findings and Conclusions

The status of the complainant as having a contract of indefinite duration was clarified to her satisfaction during the hearing and while her written contract is somewhat out of date in its description of her employment status, her actual status is a matter of law and she should be reassured on that point. The respondent fully accepted her contractual status a being a Contract of Indefinite Duration and it should take steps to update her written contract.

I must address as a preliminary matter whether the complaint may validly proceed having regard to the Wippel ruling.

I have no choice in the matter given the provenance of that ruling and I follow the Rights Commissioner in his Decision r-043289-pt-06/JT issued on August 8^th 2008.

He found as follows;

Neither can it be said that the differences between the conditions under which the workers [sic] performed and the claimant are either of such small importance to be insignificant. Given the claimant’s ability to refuse work and reduce mutuality of obligation, which exists between the claimant and the employer, no comparisons can be made to contractual relationship between full time employees and their employer’.

(Adjudicator’s note; I take the word ‘workers’ in the first line to be a typographical error and that the word should be ‘work’ as the context indicates.)

I asked the complainant at the hearing whether there had been any change in her employment circumstances since this decision which might affect consideration of it in this case and she confirmed that there had not been.

She also somewhat unconvincingly claimed that the criterion in relation to her capacity to refuse work was not known to her, even though it is explicitly spelled out in the case before the Rights’ Commissioner in which she was a party, and in his written decision.

I accept the complainant’s evidence that she may not assert this right very frequently as she needs to work.

The fact remains that she may do so without the consequences that might befall a person on a regular full (or part time) contract. As the CJEU noted this goes to the nature of the ‘employment relationship’. The Court referred (at paragraph 58 of the judgement) to the Definition in Clause 3 of the Framework Agreement where a ‘comparable full time worker’ is defined as;

‘a full time worker in the same establishment having the same type of employment contract or relationship, who is engaged in the same or a similar work/occupation.

The emphasis placed on both the contract and the employment relationship (even though one may define the other) seems important. What is referred to somewhat colloquially as the ‘casual’ aspect of the employment relationship was more accurately referred to in Wippel as a ‘contract of part-time employment according to need’.

While the complainant has grievances about her general conditions of employment these more appropriately fall to be dealt with as grievances or claims at the level of the workplace.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the reasons set out above the complaint fails and I dismiss complaint CA-0004120-001

Dated:   19 December 2016