FTD166

This matter comes before the Court by way of an appeal brought by Mr Winters (“the Complainant”) from a decision of an Adjudication Officer (r-147987-ft-14/MMG) dated 10 February 2016. The notice of appeal was received by the Court on 21 March 2016.

There is no disagreement between the parties in relation to the material facts. They can be succinctly stated as follows. The Complainant is an engineer and was employed by the Respondent on a series of fixed-term contracts in that capacity. His employment terminated on 20 July 2014. He then submitted a complaint pursuant to the Protection of Employees (Fixed-term Work) Act 2003 (“the Act”) to the Rights Commissioner (as the office was then called) on 29 August 2014 alleging certain breaches of section 10 of the Act: (a) that the Respondent had not notified the Complainant of employment opportunities which had been notified to comparable permanent employees; and (b) that the Complainant had not been given access to appropriate training opportunities to enhance his skills and careers.

The parties agreed that the relevant period encompassed by the complaints is the period beginning six months prior to the date on which the complaint was lodged and concluding on the date of the termination of the Complainant’s employment i.e. the period beginning 29 February 2014 and ending on 20 July 2014. The Adjudication Officer’s decision does not record any application having been made to him to extend time under the Act. That being the case, the only incident which is comprehended under part (a) of the complaint as referred relates to an advertisement which was circulated by the Respondent on 4 March 2014. This advertisement, it is accepted was not brought to the Complainant’s attention at the time. In fact, he submits that he only became aware of it on a later date and following a request he made under the Freedom of Information Acts. Part (b) of the complaint referred to the Rights Commissioner did not form part of the Complainant’s appeal to the Court.

The Legislation

Section 10 of the Act provides:

10.—(1) An employer shall inform a fixed-term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees.

(2) The information referred to in subsection (1) may be provided by means of a general announcement at a suitable place in the undertaking or establishment.

(3) As far as practicable, an employer shall facilitate access by a fixed-term employee to appropriate training opportunities to enhance his or her skills, career development and occupational mobility.

The Adjudication Officer’s Decision

The Adjudication Officer decided that the Complainant had not presented any valid complaint under the Act and he determined on that basis that the Complainant’s “referral” failed.

Complainant’s Submission to the Court

The Complainant, having outlined a number of historical issues that are not encompassed by the within appeal, submitted:

• “The most recent contravention of the 2003 Act was on 4^thMarch 2014 when Irish Water were (sic) looking for Contract Management Field Engineers. Details of these job opportunities were revealed under FOI … The 4^thof March falls within the six months’ time frame under review. It is the claimant’s contention that his employer did not do enough to ensure he was given the information on job vacancies during the period specified in the Council letter provided under FOI disclosure.”

Respondent’s Submission

The Respondent accepted that it had advertised a number of vacancies in the past which had not been brought to the Complainant’s attention as he had not been set up on the employer’s email system. The last such vacancy advertised by the Respondent in respect of an internal vacancy was on 20 February 2014 i.e. on a date prior to the period encompassed by this appeal.

The Council further accepted that it also advertised a number of positions on behalf of Irish Water at the latter’s request, including the aforementioned vacancies for Field Engineers advertised on 4 March 2014. The Respondent accepts that it had not brought any of these directly to the Complainant’s attention. However, it submits that vacancies advertised by the Respondent on behalf of a third party such as Irish Water are not within the scope of section 10 of the Act.

Decision

The only specific complaint of an alleged breach of section 10 of the Act, within the relevant timeframe, the Complainant refers to in his appeal relates to the advertisement for Contract Field Managers on 4 March 2014. The Complainant does not dispute that the Respondent advertised those positions on behalf of Irish Water on that date. The Respondent accepts it did not take any steps to ensure that the advertisement in question was brought to the Complainant’s attention. It follows, therefore, that the only question that falls to be decided by the Court on this appeal is whether or not advertisements made by an employer on behalf of a third party fall within the scope of section 10 of the Act.

Section 10(1) places an obligation on an employer of a fixed-term employee “to inform [the] fixed-term employee in relation to vacancies which become available”. The language of this subsection is a direct transcription of the language used in Clause 6 of the Framework Agreement on Fixed-Term Work concluded between ETUC, UNICE and CEEP of 18th March 1999 which is annexed to Directive 1999/70, which the Act transposed into domestic law. Section 2(3) of the Act provides that a word or expression that is used in the Act and is also used in the Framework Agreement has, unless the contrary intention appears, the same meaning in the Act as it has in the Framework Agreement.

In the law of the European Union, due in the main to the difficulties posed by linguistic differences in the various texts, legislative measures are generally interpreted by adopting a schematic or teleological approach. That approach involves identifying the objective pursued by the measure and giving the provision an interpretation that best achieves its objective. There is also authority for the proposition that in interpreting national legislative provisions enacted to transpose a provision of Union law a similar approach should be adopted (seeLawler v Minister for Agriculture[1990] 1 IR 365 and alsoBosphorus Hava v Minister for Transport[1994] 2 ILRM 551).

This Court, in its determination in St. Patrick’s Classical School v O’Keefe FTD 1319, stated:

• “The objective pursued by Clause 6 of the Framework Agreement and s.10 of the Act is to facilitate fixed-term workers in obtaining permanent employment in the enterprise in which they work on the same terms as all other employees. Consequently, the ambit of the obligation which these measures impose on employers must be limited to the provision of information on such vacancies as may achieve the objective in view.

  It seems to the Court that if the European or national law makers had intended to obligate employers to inform fixed-term workers of all vacancies arising they could have said so in simple terms.”

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
18th May 2016______________________
JKDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.