FULL RECOMMENDATION
SECTION 15 (1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : AN EDUCATIONAL BODY - AND - A WORKER DIVISION : Chairman: Mr Hayes Employer Member: Mr Marie Worker Member: Ms O'Donnell |
1. Appeal Of Adjudication Officer Decision No ADJ-00000098.
BACKGROUND:
2. The Worker referred his case to the Labour Court in accordance with Section 15(1) of the Protection of Employees (Fixed-Term Work Act), 2003. The following is the Determination of the Court:
DETERMINATION:
- Payment of Fee
The Complainant applied to Court to be refunded the fee he submitted when making the appeal under the Act.
The Respondent offered no view on the matter to the Court.
Findings of the Court
The Court finds that the Complainant submitted a fee of €300 when lodging his appeal. This was clearly an error on his part as no such fee is required unless he failed to attend at the hearing of the matter at first instance. In this case the Complainant did attend the hearing before the Adjudication Officer. He was therefore entitled to appeal without the payment of a fee.
Determination
The Court determines that the fee of €300 be refunded to the Complainant. The Court so determines.
Substantive Matter
The Worker (the Complainant) made a complaint to the Rights Commissioner/Adjudication Officer in which he stated that the Educational Body, (the Respondent) infringed his entitlements under section 9 of the Act when it refused to properly afford him the terms of the contract of indefinite duration to which he became entitled under the Act by operation of law in September 2011.
The Respondent rejects the complaint. It submits that it at all material times acknowledged the Complainant’s entitlement to a contract of indefinite duration. It submits that it has and continues to employ him under the contract to which he became entitled under the Act. It further submits that the complaint is statute barred as it was submitted outside the statutory time limit for bringing complaints under the Act. Finally it submits that the Complainant does not have locus standi to bring these proceedings as he is employed on a contract of indefinite duration and as a consequence he does not have the status of a fixed term worker.
Background
The Respondent employed the Complainant on the first of what turned out to be a series of fixed term contracts of employment commencing in February 2008. That contract expired at the end of the academic year in May of 2008. His contract was renewed in September 2008 and expired in May 2009. It was renewed again for the academic years in 2009/2010, 2010/2011 and 2011/2012.
The Complainant wrote to the Respondent on 12 July 2013 seeking a contract of indefinite duration. The letter was acknowledged but nothing further followed. The Complainant wrote to the Respondent again on 7 October 2013 reiterating his entitlement to a contract of indefinite duration. He received no response. He wrote again, this time to the Chief Executive of the Respondent authority on 12 January 2014. He received an acknowledgement of the letter from the Principal Officer of the Respondent authority on 21 January 2014. No further response was received. The Complainant wrote again on 12 April 2014 but received no response. He wrote again in May 2014 and received a reply on 19 May.
He was offered a contract of indefinite duration on 20 May 2014. However that contract contained no reference to the number of hours for which he would be employed. Further correspondence followed in the course of which the Respondent calculated the number of hours the Complainant had worked in the academic year 2011/2012, the contract under and year in which he became entitled to a CID under the Act. It told the Complainant that it would guarantee him that number of hours under the CID. The Complainant rejected the proposed resolution claiming that he was entitled to a higher number of hours.
The parties could not reach agreement and the instant proceedings commenced. The Adjudication Officer decided that the complaint was statute barred and he did not have jurisdiction under the Act to hear the matter. The Complainant appealed against that decision to this Court.
Preliminary Matter
The Respondent raised a number of preliminary matters.
Time Limits and Locus Standi
The Respondent submits that the Complainant became entitled to a contract of indefinite duration by operation of law in February 2012. It submits that he did not pursue the matter until July 2013. It further submits that the terms of the CID were reduced to writing and presented to him on 20 May 2014. It submits that from that point onwards the Complainant was no longer a fixed term worker and that he ceased to come within the scope of the Act. It further submits that he did not commence proceedings under the Act within six months of that date.
The Complainant submits that the Respondent was at all times responsible for the delay in addressing this matter. He submits that he acted promptly and efficiently and sought to exhaust all internal avenues of appeal to resolve the matter. He submits that the Respondent altered the terms of the proposed CID on a number of occasions in the course of those exchanges. He submits that the final CID the Respondent offered to him was dated 1 April 2015 which he told the Court he received on 2 April 2015. He refused to sign that contract and commenced the instant proceedings on 8 October 2015 some six months and six days later.
Findings of the Court
The Court has considered the extensive written and oral submissions of both parties in this case. The Court finds that the Respondent did not acknowledge the Complainant’s entitlement to a Contract of Indefinite Duration until after he raised the matter with it in correspondence on 12 July 2013. Even then the Respondent delayed in replying to the Complainant and did not ultimately acknowledge its obligations to the Complainant until 19 May 2014. However even then the Respondent was not clear about the nature of the CID it was committing to. It first offered the Complainant a CID with no specified hours. It subsequently changed that on a number of occasions and it was only on 2 April 2015 that it set out its final position specifying details of the Complainant’s hours.
The Court finds that until that date the Respondent was in fact denying the Complainant’s had an entitlement under the Act and was continuing to treat him as a fixed term worker while claiming to have recognised his status as the holder of a CID.
However the Court finds that the Respondent’s position was clearly set out in the exchange of correspondence that took place on 2 April 2015. After that date the Complainant could have been under no illusion about what was being offered to him. His choice thereafter was clear. He could either accept the terms on offer or commence proceedings under the Act to vindicate his rights.
In the event he rejected the terms offered to him but did not commence proceedings under the Act within the statutory six month time limit. He delayed beyond the six months albeit by a short number of days.
He now seeks to have the time for bringing his complaint extended under the Act.
The Court has given careful consideration to this request. However it finds it cannot find any basis for acceding to it. The Court considered the short period of time involved. However the only explanation for the delay the Complainant offered the Court was that he was preparing a full submission before he submitted the complaint. The Court cannot accept that explanation as it is clear that the filing of a complaint does not require the preparation of a full submission and moreover he had a full six months within which to prepare a submission had he so wished.
Statutory time limits are set out in the Act and can only be extended where the statutory grounds for so extending the time limit justifies such a decision. The bar is not set at an unreasonably high level. However there is a bar and it must be cleared. Where it is not cleared the Court does not have the power to ignore the statutory time limit. In this case the Complainant has not set out grounds that justify and explain the delay. Accordingly the Court cannot grant an extension of time.
In these circumstances therefore the Court finds that the Complaint was not brought within the statutory time limit and is statute barred.
Determination
The complaint was not brought within the statutory time limit. The Court therefore does not have jurisdiction to hear the appeal. The decision of the Adjudication Officer is affirmed.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
29th August 2016______________________
JKDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.