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-00002488-001

04/02/2016

The claimant has been employed as a Plant   Operator/Labourer with the Local Authority since October 2004.He has been   employed on a seasonal basis – between 2004-2008.He worked on an emergency   relief basis from Dec.2011 to March   2012 – it was contended that the   claimant has been employed on 4 continuous fixed term contracts since then

1. ^th.March2012

3^rd.March 2014-1^st.Sept2014

1^st.Sept.2014-10^th.Oct.2014

24^th.Nov.2014-29^th.May2015

27^th.July 2015-29^th.Jan2016

It was submitted that the claimant   has invariably been placed high on the   respondent’s recruitment panels – he was placed 5^th. on a county   wide panel in May 2013 and first on   the panel when he competed in April 2014.

It was submitted that despite   the respondent’s arguments to the contrary , the claimant had continuous   service – the provisions of Beary v Revenue Commissioners FTD112 were invoked   in support of this position – where reference was made to the High Court   determination that “ a lay-off is not   subject to any temporal limitations…..it was found that for the purpose of   ensuring that the Act is applied in harmony with the Directive a purposive or   theological construction should be applied to the notion of layoff.The Court   further determined that an absence on   lay-off in excess of 26 weeks does not break continuity of service.It was   submitted that this rationale was endorsed by the High Court in HSE v Sallam   [2014]IEHC 298.

It was submitted that the   question to be asked is whether at the time of cessation of the contract it was   reasonable in the circumstances then prevailing to believe that the   cessation would probably not be   permanent.It was argued that given the claimant’s success on panels it was   reasonable to assume that the cessation of employment would not be permanent.The   provisions of FTD154 were invoked in support of the claimant’s application for a Contract of Indefinite   Duration – the Labour Court had found that 2 periods of inactivity between   assignments are regarded as a period of lay off since their placement on the   panel created a realistic expectation that they would later be recalled when   the need for further assignment arose.On the date of the second hearing , the   claimant continued to be employed by the respondent.

It was contended that in awarding a CID , the claimant was   entitled to a full time contract.It was submitted that the claimant’s case   was distinguishable form FTD 154 by virtue of the fact that the claimant   works all seasons ; during the period March 2014 – May 2015 , the claimant   had just one month off and was readily   comparable to a full time employee.

It was submitted that the respondent had failed to provide   compelling grounds for the continuing use of fixed term contracts – it   appeared to be relying on custom and practise   and a reduction in the roads budget since 2008 .It was argued that the   roads budget had in fact increased between 2014- 2016 and the respondent’s   reliance on custom and practise did not mean that the contracts were   objectively justified.The court had determined in Teagasc –v- SIPTU FTD 138   that a moratorium on employment did not constitute an objective ground.

The respondent denied any   breach of the Act and submitted that   the claimant does not have locus standi   giving rise to a jurisdictional issue.It was submitted that the   claimant did not have an entitlement under the Act to a Contract of   Indefinite Duration.

It was submitted that the   claimant did not meet the criteria set   out in Section 9 for a CID – it was advanced that the break in service in   2013 meant that his employment “ for   reckoning purposes under the Act” commenced on the 3^rd.March   2014.The respondent set out the claimant’s employment dates since 2004 and   contended that as the claimant was not employed during 2013 , Section 9(5) could   not be construed to imply continuous service on the part of the claimant.It   was submitted that the claimant did not have an aggregate of 4 years service   with the Council.

The respondent invoked the   provisions of LCR19685 North Tipperary County Council and SIPTU with respect   to panel s and seasonal employment .It was submitted that the Court had found   that “ workers who have accrued an aggregate of 48 months casual/seasonal   employment , where any two periods were not broken by a period in excess of 26 weeks , should   be entitled to placement on the panel   for an indefinite duration up to normal retirement age”.It was   advanced that the claimant did not meet this test .

It was submitted that a   proposition of entitlement to whole time working was flawed- “ seasonal   working by its very nature , is work for which additional resources are   employed to fill a genuine working need of the organisation thereby providing   objective justification for seasonal   working as opposed to full time working .”

It was submitted that the High   Court in The Minister for Finance v McArdle [2007]E.L.R.165 upheld the   findings of the Labour Court that where a fixed term contract transmutes to a   CID by operation of law , the   resulting contract is identical to that from which it derived – other than   with respect to tenure.It was contended that accordingly , a worker cannot   accrue better contract and a part time   worker cannot accrue entitlement to full time working under the Act.It was   submitted that this was further supported in FTD 154 Kerry County Council and   James Walsh & Others where the Court determined that the claims for   superior conditions to those to which they were entitled were not well   founded.

It was submitted that seasonal work was a feature across   the local authority sector and that the amount of work is budget dependant   and varies from season to season.

It was contended that concession of the claimant’s claim   would lead to knock on claims resulting in prohibitive costs for the   respondent.It was advanced that the respondent was engaging with SIPTU on its   workforce plan for outdoor grades – it was submitted that the respondent   relies on custom and practise and utilises “ the seasonal working arrangement   which has existed harmoniously between the parties over many years”.