FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15 (1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : WEXFORD COUNTY COUNCIL - AND - JIM REDMOND (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Foley Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. An appeal of a Rights Commissioner's Decision no r-151928-ft-14/JT.
BACKGROUND:
2. This case is an appeal of Rights Commissioner Decision No. r-151928-ft-14/JT made pursuant to Section 15(1) of the Protection of Employees (Fixed Term Work) Act 2003. The appeal was heard by the Labour Court on 26th April, 2016 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Jim Redmond (the Appellant) against the decision of an Adjudication Officer / Rights Commissioner in a claim made against his former employer, Wexford County Council (the Respondent) under the Protection of Employees (Fixed Term Work) Act, 2003 (the Act).
The Adjudication Officer / Rights Commissioner found against the Appellant’s claim.
Background
The Appellant was employed by New Ross Town Council as temporary Traffic Warden on 22ndNovember 2010. Wexford County Council, on 24thJanuary 2011, secured approval to fill a post of Traffic / Litter Warden (with initial assignment to New Ross Town Council) on a contract of three years' duration. This post was advertised and the Appellant, along with 143 other persons, applied for the position. He was successful in securing the post and was appointed for a period of three years commencing on 13thJune 2011 and terminating on 12thJune 2014.
The Appellant’s employment terminated in accordance with the terms of his contract on 12thJune 2014 and as was his entitlement the Appellant applied for a refund of his pension contributions in June 2014 which he secured in July 2014.
The Appellant was telephoned by the Respondent on or before October 2014 and requested to attend in Court in order to give evidence in relation to traffic fines on 21stOctober 2014. The Appellant did attend on that day and received payment of his expenses and a fee for his attendance on the day from the Respondent. The Appellant was similarly requested by letter dated 5thMarch 2015 to attend Court on 18thMarch 2015 to give evidence. The letter advised that claimed travel allowances would be paid plus an agreed fee of €116.63. The Appellant attended Court on that day and subsequently was paid in respect of his expenses and a fee.
Position of the Parties
The Appellant
The Appellant contends that his engagement by the Respondent in 2010 and, following the termination of his employment in June 2014, again on 21stOctober 2014 and 18thMarch 2015 constituted engagement on successive fixed Term Contracts and contends that, by operation of the law and in particular Section 9 of the Act, he is entitled to a contract of indefinite duration.
The Respondent
The Respondent asserts that the Appellant was employed on a temporary contract in November 2010 and successively on a fixed term contract until the termination of his employment in June 2014. The Respondent denies that the Appellant was employed by the Respondent on 21stOctober 2014 or on 18thMarch 2015. The Respondent contends that the Appellant was requested to attend Court to give evidence in relation to fines he had issued while in the Respondent’s employment and was paid a fee for his time together with his expenses. The Respondent asserted that the Appellant was under no obligation to agree to the Respondent’s request to attend Court. The Respondent confirmed that no administrative steps were taken to record the Appellant as an employee of the respondent on the dates in October 2014 and March 2015.
The Respondent asserts, without prejudice to its position that that it did not employ the Appellant on 21stOctober 2014 and 18thMarch 2015, its engagement of the Appellant on those days for one day on each occasion was justified on objective grounds arising from the sitting of a Court to deal with fines which the Appellant had issued.
The Law
The Act at Section 9 provides as follows:
- 9.—(1) Subject to subsection (4), where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.
(2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.
(3) Where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.
(4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.
(5) The First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous.
The Appellant was employed on a fixed term contract which expired in accordance with its terms on 12thJune 2014. The Appellant’s employment with the Respondent terminated on that date.
There is no issue between the parties as regards the events of 21stOctober 2014 and 18thMarch 2015. Specifically, it is common case that the Appellant’s engagement on those dates by the Respondent was directly and solely connected with and arising from the convening of Courts on those dates and the Respondent’s requests to the Appellant to give evidence to those Courts as regards traffic fines he had issued while in the employ of the Respondent.
There is no clarity that the engagement of the Appellant on 21stOctober 2015 and again on 18thMarch 2015 was in the nature of employment. It is only if these engagements were in the nature of employment that the Act could have application. The Court has decided that this matter will require to be addressed only if the Court concludes that, were these engagements in the nature of employment, a breach of the Act has occurred. In the event that the Court concludes that, were these engagements to be in the nature of employment, the Respondent was not in breach of the Act then there will be no necessity for the Court to determine the nature of the engagements of the Appellant on these two dates.
It is clear to the Court that no claim was made before the Rights Commissioner / Adjudication Officer as regards the Appellant’s attendance at Court on 18thMarch 2015 and no explanation was offered to the Court for that fact. The Court was unable to determine whether the within complaint was made to the then Labour Relations Commission before or after 18thMarch 2015.
The Appellant commenced employment with the Respondent in November 2010. The Appellant’s attendance in Court on 21stOctober 2014 occurred less than four years after the issuance by New Ross Town Council of the Appellant’s first contract of employment.
The Court accepts that the engagement of the Appellant on 21stOctober 2014 and 18thMarch 2015 arose solely from his agreement to attend at sittings of Courts in order to give evidence in relation to fines he had issued while in the employment of the Respondent. The Court finds that, even if the engagements of the Appellant on these two dates were adjudged to be renewals of a contract of employment for a fixed term there are objective grounds for such renewals.
In light of that finding the Court is not required to determine the nature of the Appellant’s engagement by the Respondent on two dates and neither is it necessary to determine the validity, having regard to the date of the Appellant’s original complaint, of the Appellant’s claim before it as it relates to events occurring on 18thMarch 2015.
Determination
For the reasons set out above the Court determines that the Respondent was not in breach of the Act arising from the engagement of the Appellant on 21stOctober 2014 or 18thMay 2015 and the appeal fails. The decision of the Rights Commissioner / Adjudication Officer is affirmed.
Signed on behalf of the Labour Court
Kevin Foley
CR______________________
13th May, 2016Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.