ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000098
Complaint(s)/Dispute(s) 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-00000107-001 | 06/10/2015 |
Date of Adjudication Hearing: 11/02/2016
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and /or Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003, 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:
Dear Sir or Madam, I wish to apply for the Rights Commissioners Service to investigate a dispute that I have with the Respondent Education and Training Board with regards my application for a Contract of Indefinite Duration (CID) under the Protection of Employees (Part-Time Work) Act, 2001. The correspondence archive (with a CE number for referencing) is contained in the Appendices of my submission to you, however, if I may summarise the matter as follows... I started working for the Respondent as a Life Model in the Respondent College of Further Education in the Arts Department, on 06 February 2008 on a part time casual basis. I applied for a Contract of Indefinite Duration (CID) on after completing 5 years service with the Respondent on 12 July 2013 (CE7). I was first offered a zero hours contract on 19 May 2014 (CE19). After a number of letters from me to the Respondent, I was then offered a CID with only 200 Hours per year on 16 January 2015 (CE24). I dispute the method by the Respondent of calculating the hours to be allotted to my CID. I wrote to HR on 03 February 2015 (CE28) using the Respondent’s own version of calculating the years of service. I contend that 2007/08 is my first year of service; therefore 2010/11 is my 4th year of service. The P45 dated 02 May 2008 (CE3) confirms the end of the 1st year of service. My understanding is that a CID must be awarded in the fifth consecutive year of service (i.e. after four consecutive fixed term contracts). The number of hours in the CID will be based on the number of hours one holds in the fourth contract. The Respondent has disregarded the year 2007/2008 and calculated from 2008/2009 as the 1st year of service – to see please table below. Years of Employment Academic Year Eligible Hours worked & paid in the Academic Year Criteria 1st 2007/08 54 Disregarded by the Respondent 2nd 2008/09 397 3rd 2009/10 379 4th 2010/11 338.30 Completes the 4th consecutive year of employment 5th 2011/12 200 CID issued at the commencement of the 5th year, calculated on hours delivered in 4th year The Respondent in their letter of 01 April 2015 (CE32) offered a complex method of calculating the hours and what constituted the 4th/5th years of service. They also stated that this is the method of calculating CID hours they apply to all staff who work the academic year. It must be reminded that at first the Respondent offered me a zero hours contract (CE19 & CE20) – again based on the Respondent’s own method of calculating hours for a CID. Since the Respondent raised the matter themselves, of how they calculate CID hours (CE32), I asked them to substantiate the hours allotted to the other Life Models in my letter of 07 April 2015 (CE34). In particular the 687 hours allotted to a colleague – which is a mathematically impossible calculation as there is simply not that amount of hours a person could work or could have worked – given the class hours and timetable restrictions. I believe the Respondent has made a mistake in their calculation of these hours. I offered the Respondent to go to arbitration with this matter, but my letter of 07 April 2015 (CE34) went unresponded to. Accordingly, I gave notice, in my letter dated 03 September 2015 (CE38) that I now take leave to seek recourse to the Office of the Rights Commissioner Service. No objection to this was raised by the Respondent in their letter to me dated 21 September 2015 (CE39). I would ask that the method of calculating the CID hours allotted to me is independently assessed and calculated, taking into account the submitted criteria in my letters to the Respondent and their responses. I would be grateful if you could contact me if you require any further information or clarification on matters or issues presented in this application. I thank you for your time and would be appreciative for the consideration of my application. Yours faithfully, ------------------------------------------- Complainant |
Respondent’s Submission and Presentation:
The Respondent submitted that the claim was in effect misconceived – the Complainant is not a Fixed term Worker and the provisions of the Protection of Employees (Fixed-Term Work) Act, 2003 do not apply.
In addition the claim, even if accepted is out of time regarding the time limits set down by Section 14 of the Act.
The complainant ceased to be a fixed term worker on the 6thFebruary 2012.
The respondent re confirmed his Permanent Status on the 19th May 2014.
Legal submissions, in support of this point, were incorporated in the Respondent’s Submission – namely the case of HSE West v Dr Kishane Brown FTD 102 and quoted
“the Claimant ceased to be a fixed –term employee on the 1st January, 2005. His status as a permanent employee was subsequently acknowledged by the Responded, at the latest, in December 2006. It follows that in July 2007 when the disputed contract was preferred to the Claimant, he was not a fixed term employee. It follows that any dispute concerning the terms of his permanent employment cannot be adjudicated upon under the Act of 2003.”
In relation to the substantive claim the Respondent submitted that the methodology used to determine the number of hours in the CID was the standard format used in all cases and consistent with all other staff.
The Respondent submitted detailed legal precedents in support of their position – Brothers of Charity v Morrin (TD 104) and Laffoy .J in Minister for Finance v McArdle 2 ILRM 438.
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 and the relevant sections of the Protection of Employees (Fixed-Term Work) Act, 2003
Issues for Decision:
Taking the preliminary legal arguments of the Respondent is this claim not well founded by reason of the non applicability of the Protection of Employees (Fixed-Term Work) Act, 2003 to the Complainant?
If allowing the claim to be considered is the Respondent acting within his rights in the methodology used to determine the hours allocated to he complainant?
Legislation involved and requirements of legislation:
Protection of Employees (Fixed-Term Work) Act, 2003
Decision:
The Complainant gave convincing and very persuasive oral evidence and a detailed written submission – however the legal arguments of the Respondent in regard to the non applicability of the Protection of Employees (Fixed-Term Work) Act, 2003 are unanswerable and the claim cannot proceed.
The complainant is in a most unenviable positon – the key issue of his case –the determination of the number of hours in a CID has been the subject of extensive discussion at the Department of Education and Science. A special Appeals Mechanism has been established to consider cases of this nature –albeit the scheme has not been extended to cover employees in his particular grade.
I can only recommend that the case of the hours of this Complainant be referred to this Dept. of Education and Science Appeals Mechanism –even if on an ex gratia exceptional basis.
Dated: 24/5/2016