ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002188

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 13/12/2016

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).

1:        Summary of Complainant’s Submission and Presentation:

2:        Summary of Respondent’s Submission and Presentation:

The Respondent contended that

Firstly

There was no association or continuity of employment between the two Fixed Terms Contracts cited by the Complainant.

& Secondly

In the case of the Second Contract it is for a fixed Purpose – the Production of Public Service Cards – a project that it anticipated will finish in 2017.

On both grounds cited the claim must fall and the Complainant is not entitled to a Contract of Indefinite Duration.

3:        Decision:

Section 41(4) of the Workplace Relations Act 2015 and or Section 14 of the Protection of Employees (Fixed-Term Work)Act, 2003 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.

4:        Issues for Decision:

There are three questions posed in this case.

1. Is there Continuity between the First and Second Contracts?

2. Is the Complainant now entitled to a Contract of Indefinite Duration (CID)?

3. Does the Respondent have “Objective Grounds” to justify not issuing a CID

5:        Legislation involved and requirements of legislation:

The Protection of Employees (Fixed-Term Work) Act, 2003

6:        Decision:

The Law

The Labour Court in FTD 1330 gave a useful summary of the Law as it applies to cases of this nature and I refer to it for guidance.

The relevant statutory provisions are to be found in Sections 7, 8 and 9 of the Protection of Employees (Fixed Terms Work) Act, 2003. The Act was enacted so as to transpose into domestic law the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP annexed to Directive No. 1999/70/EC of 28 June 1999 of the Council of the then European Communities. Consequently the provisions of the Act must be interpreted and applied so as to achieve the objective pursued by the Framework Agreement. The purpose of Clause 1 of the Framework Agreement was two fold. Firstly, to improve the quality of fixed-term work by applying the principle of equal treatment to fixed-term workers. Secondly, it was intended to provide a framework for the prevention of abuse arising from the successive use of fixed-term employment contracts. Section 9(2) of the Act, which is relevant for present purposes, provides:-

• (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 four years.

  Section 9(4) provides that subsection (2) and (3) does not apply where there are objective grounds justifying the renewal. Section 7 (1) of the Act deals with what constitutes objective grounds for this purpose and provides:

• (1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a fixed-term employee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of a fixed-term employee's contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.

  Subsection (3) of Section 9 of the Act is of particular significance in the instant case. It provides:

• (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.

  Objective Justification There is a wealth of authority in the jurisprudence of the Court of Justice of the European Union on how the concept of objective justification should be applied. In Adeneler the CJEU made it clear that the grounds relied upon must be objectively justified by reference to the work actually performed and the circumstances under which it is performed. Again in Adeneler and in C-380/07 Kiriaki Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis and Dimos Geropotamou[2009] ECR 1-3071, the CJEU drew a distinction between work undertaken for the purpose of meeting the fixed and permanent needs of the employer and work for the purpose of meeting some temporary or transient need. While work in the former category should normally be undertaken on permanent contracts of employment, temporary or fixed-term contracts would normally be suitable for work in the latter category. As previously stated, in considering if the renewal of a fixed-term contract gives rise to a contract of indefinite duration the Adjudicator should look no further than the objective grounds relied upon for the contract that prima facie contravenes Sections 9(1) or 9(2) of the Act. That appears to be the import of the decision of the High Court in HSE v Umar [2011] 22 ELR 229.

  The Respondent submitted that the project for the Public Service Cards complied with the objective justification requirements under Section 9(4) of the Act.

  Returning to our questions

  Question 1: Are the Contracts linked / Is there continuity?

  The Reasonable view is that there is a linkage. The Contracts were both in the same building with the same employer and the time gap was insignificant. It is accepted that the recruitment Agency was the Public Appointments Service and the Respondent claims that they had no knowledge who the second appointee would be – it was by pure coincidence that it was the Complainant. This position is somewhat questioned by the fact that the Complaint was interviewed for Contract Two by her Respondent Department Superior in the Respondent Offices where she had already worked in the South East.

  On the Reasonable Grounds I have to find that the Contracts are linked.

  Question Two: Is the Complainant entitled to a Contract of Indefinite Duration?

  Accepting Section 9(3) of the Act as quoted above the Complainant has over four years continuous employment and has had two contracts of fixed term employment. A contract of Indefinite Duration now appears appropriate by action of the Statue.

  Question 3: Has the Respondent “Objective Grounds” to justify continuing with the Contract on a Fixed Term basis?

  The Respondent argument is that the basis of the Contract is the for the purpose of

  “general clerical officer duties in (Respondent Local Office in the South East) to facilitate the implementation of the Public Service card – this appointment therefore cannot result in an offer of a contract of indefinite duration” Letter of Contract of 23^rd July 2012.

  The evidence from both parties and the letter to the CPSU of the 27^th April 2012 from the Assistant Principal Mr. WB indicates that the Public Service Card project is long term in nature. The Respondent in their submission stated that the first phase implementation of Public Service card project would end in December 2017. The Complainant’s submission pointed to the very ongoing nature of the PS card project and the fact that it, by its nature, would have to continue indefinitely. The Respondents argued that the Complainant was engaged for the initial implementation phase only.

  In evidence it was clear that the Complainant was now fully integrated into the general office staff of the Respondent SE Office and carried out a full range of duties over and above the PS Card remit. Over a period of five years since 2011 it was clear that initial rational for the recruitment of the Complainant had become lost /subsumed into the general needs of a very busy operational office.

   

  A quote from Labour Court Determination No FTD 097 Railway Procurement Agency and Allan Bell and others and referred to in Labour Court FTD 1330 is apt at this juncture.

  “The essence of a fixed-term contract is that it will come to an end by the occurrence of an objective condition specified in the contract itself. That condition can be the effluxion of time, the completion of a specific task or the occurrence of an event. It would appear logical that where the completion of a specific task is the determining event, it would have to be a clearly identified and specific task which would eventually come to an end, such as a task or project which is not part of the fixed and permanent needs of the employer. Were it otherwise practically every employment contract could be regarded as being for a fixed-purpose and therefore a fixed-term contract within the meaning of the Act.”

  The evidence both written and oral is that the Public Service Card project is in itself of Indefinite Duration and will effectively never come to an end. The “Implementation Phase” argument of the Respondent was not supported by the evidence cited. The project is linked to the demographics of the State and the likely end of the “implementation” phase is impossible to predict.

  To quote from the reference above Labour Court FTD 097Railway Procurement Agency and Allan Bell and others

  “, it would have to be a clearly identified and specific task which would eventually come to an end, such as a task or project which is not part of the fixed and permanent needs of the employer”.

  The Public Service Card project is now an integral part of the daily work of the Respondent Department. Coupled with the complete absorption of the Complainant into the daily work across all functions of the Respondent Department I can find no adequate or reasonable evidence to refuse a CID for the Complainant.

  Accordingly the Respondent argument that the Complainant’s employment , allied to the PS Card process , will end in 2017 and the issue become one of possible further renewal of her Contract does not have “objective justification” as required by Section 9(4) of the Act.

  Section 9(3) applies and a Contract of Indefinite Duration is appropriate for the Complainant.

  7:         Final Summary.

  Having reviewed all the evidence both oral and written I find that the Complainant should be issued with a Contract of Indefinite Duration as soon as possible.

   

Dated:           24 April 2017