ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00006712

Parties:

Complaints:

Date of Adjudication Hearing: 05/09/2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

BACKGROUND.

The Complainant has been employed by the Respondent from 1st January 1984 as a Teacher. She is paid €37,000 per annum for working 9 months of each year. The Complainant signed on with the Department of Social Protection for the other 3 months of the year, which was facilitated by the Respondent. The Complainant was in receipt of Jobseekers Benefit for these three months of each year. The Complainant referred complaints to the Workplace Relations Commission on 16th January 2017 alleging breaches of the Act in relation to being provided with a Contract of Indefinite Duration; failure to set out objective grounds and not being provided with opportunities for promotion.

SUMMARY OF COMPLAINANT’S POSITION.

The Complainant has been employed as a Teacher with the Respondent since 1984 and has been employed on a continuous basis for some 32 years. The Complainant is paid from the School’s private resources and has been employed during that period on a series of fixed-term contracts of employment which are annually renewed at the start of each academic year. However, the Contracts only cover 9 months of the academic year and the Complainant must rely on social welfare payments for the months of June, July and August, while the school is on holidays. The most recent fixed-term contract of employment provided to the Complainant is for the academic year 2005-2006 and was provided to her on 27th February 2006. This states in part as follows: “Your employment with the College commenced on the 29th day of August 2005. It will terminate on 2nd June 2006. This is a fixed term contract and therefore, the provisions of the Unfair Dismissals Acts 1977 – 2001 will not apply to the termination of this contract where such termination is by reason only of the expiry of this fixed term”. It further states “Notwithstanding the fact that this is a fixed term contract of employment, the College reserves the right the extend the said term”.

The Complainant has thus been a fixed term employee for the last 34 years employed for 9 months of the year each year of this employment. The Complainant with the approval and assistance of the Respondent has had to rely on social welfare payments for three months of each year. This is a highly unusual arrangement and contrasts with how other permanent employees of the College are treated. The most recent arrangement with the Department of Social Protection occurred on 9th June 2016 whereby it was confirmed to her that she is to receive social welfare payments while “the school is closed for the summer months”. Her application forms must be signed and stamped by the College.

Not only does the Complainant sign on with the Department of Social Protection for 3 months of each year but despite the fact that she has effectively been an employee of the school for some 34 years she does not have any pension entitlements and has not been informed by her Employer concerning joining the group pension scheme unlike other employees who are members of this pension scheme.

Furthermore, while the Complainant has a third level qualification she does not have a H.DIP qualification and accordingly is not entitled to register with the Teaching Council. She has not been facilitated by her Employer in obtaining such a qualification unlike the facility being afforded other full time employees of the College.

The Complainant is alleging breach of Section 6 of the Act in that she has been afforded less favourable treatment than other comparable employees of the College who are also paid from the College’s private resources. Examples are, being paid a lesser rate than comparable employees – not being paid for three months of each year – not being afforded an opportunity to join the Group Pension Scheme. The Complainant is claiming breach of Section 8 of the Act in that she was a Fixed -Term Employee and was never informed in writing of the objective reasons as to why she was being provided with Fixed-term contracts of employment and why she was not being provided with a Contract of Indefinite Duration in breach of Section 8(2) of the Act.

The Complainant is alleging a breach of Section 9 of the Act in that she has never been provided with a Contract of Indefinite Duration and a breach of Section 10(1) of the Act in that she was never informed of any opportunities to be made a permanent employee of the College.

SUMMARY OF RESPONDENT’S POSITION.

The Complainant is a full-time teacher who has been employed continuous by the College since the 1980’s. She is a permanent member of staff who is paid privately by the College for the duration of the school year (this is 9 months of each school year). The Complainant has been issued with contracts in 2001 – 2002 – 2003 to 4th June 2004 and she was issued with a permanent contract from 20th August 2004. Then by letter dated 27th February 2006 the Complainant was issued with a nine-month fixed -term contract of employment from 29th August 2005 to 2nd June 2006. The Complainant was not issued with any further contracts of employment after that date and she has continued to be paid over nine months of the school year. The Respondent classified her as a permanent employee.

The Act commenced on 14th July 2003 and Section 9(1) of the Act provides that where a fixed-term employee has completed his or her third year of continuous employment, his or her fixed-term contract may only be renewed by that employer on only one occasion and any such renewal shall be for no longer than one year. It follows therefore that after the commencement of the Act the Complainant has been continuously employed by the College and paid for nine months of the year. The Respondent then argued that as a permanent employee the Complainant did not have locus standi to bring a claim under the Act of 2003. The Respondent further argued that the WRC and the Adjudication Officer has no jurisdiction to vary any other term of the employment contract and her manner of payment of her salary over nine months of the school year has remained unchanged over an extensive period

Section 6. The Respondent argued there was no breach of Section 6 of the Act as the Complainant is a permanent member of staff and has not been treated in a less favourable manner than any other employee during the course of the employment. As regards being paid less than comparable members of staff and not being paid for three months of each year the Respondent has no obligation to pay permanent members of staff the same rate of pay or in the same manner. In relation to the pension scheme the Complainant has an entitlement to join the College’s Defined Contribution Scheme however she has not sought to do so. The last presentation which was advertised in the College was held on 20th September 2016 in relation to the Scheme

Section 8. The last fixed-term contract of employment issued to the Complainant was from 29th August 2005 to 2nd June 2006. The Complainant is considered a permanent employee.

Section 10. The Complainant is a permanent employee and has been made aware of promotional opportunities through notices in the staff room, However the Respondent stated the Complainant did not apply for any of these positions as advertised.

FINDINGS.

PRELIMINARY ISSUE – LOCUS STANDI. Section 2(1) of the Act defines what a Fixed-Term Employee is for the purposes of the Act as follows – “means a person having a contract of employment entered into directly with the employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event…..”. There was no dispute between the Parties but that the Complainant was employed each year from August/September to June the following year and that the Employer facilitated the Complainant claiming Jobseekers Benefit from the Department of Social Protection for the months of June, July and August each year. Both parties also confirmed that the Complainant was paid a salary to cover her employment for these nine months each year. Therefore it is clear that the Complainant had an implied contract of employment directly with the Respondent which commenced in August/September and concluded in June each year at the end of the school year. Therefore, the Contract ended on a specified date each year i.e. at the end of the school year. Therefore, I find that the Complainant was a fixed-term employee who was employed by the Respondent and paid a salary each year for nine months of the year.

PRELIMINARY ISSUE – JURISDICTION TO VARY THE TERMS OF THE CONTRACT. If the Adjudication Officer finds that the Respondent has breached any other section of the Act covered by this complaint with particular reference to the complaint that the Complainant is being treated less favourably than comparable employees, then the Adjudication Officer can issue a decision to amend the Contract of Employment.

Section 6. Section 6(1) of the Act provides “Subject to subsections (2) and (5), a fixed-term employee shall not in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee”. Subsection (2) provides that treating a fixed-term employee in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may…..be so treated. Subsection (5) does not apply in relation to this complaint. Section 5(2) of the Act defines what is a comparable permanent employee as – “the permanent employee and the relevant fixed-term employee are employed by the same employer…and one of the conditions referred to in subsection (2) is satisfied in respect of those employees. Section 5(2)(b) provides as follows – (b) the work performed by one of the employees concerned is of the same or similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are small importance in relation to the work performed in relation to the work as a whole or occur with such irregularity as not to be significant”. The comparators are all other teachers, who are either paid out of the private funds of the College or are publicly funded. Neither in their submission or in discussion at the Hearing did the Respondent identify any objective justification as defined by Section 7 of the Act to justify the different treatment of the Complainant in relation to her salary which was paid over nine months of the year and in respect of effectively being laid off for the months of June, July and August each year where she was facilitated in claiming Jobseekers Benefit from the State. I find that the Respondent has breached Section 6 of the Act. The Complainant is therefore entitled to be paid an annual salary to cover 12 months of the year.

Section 8. This section provides that where an employee is employed on a fixed-term contract of employment the employee is to be informed in writing by the Employer of the objective grounds determining the contract whether it is arriving at a specific date- completing a specific task or the occurrence of a specific event. It is clear from the evidence from both parties that although the Complainant was employed for nine months each year she never received anything in writing from the Respondent setting out the objective conditions for this. Likewise, the Complainant has been employed as a fixed-term employee each year for nine months of each year and has not been informed in writing by the Respondent of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a Contract of Indefinite duration as specified at Section 8(2) of the Act. I find that the Respondent has breached both Section 8(1) and Section 8(2) of the Act.

Section 9. Section 9(1) of the Act provides that following the enactment of the legislation in 2003 where a fixed-term employee has completed his or her third year of continuous employment with the Employer his or her fixed-term contract may only be renewed on only one occasion and any such renewal shall be only for one year. The evidence was the Complainant was employed prior to the enactment of the legislation in 2003 and completed 3 years’ continuous employment with the Respondent and has been employed since 2006 on continuous fixed term contract of employment for nine months of each year. In accordance with Section 9(3) of the Act I declare that the Complainant became entitled to a Contract of Indefinite Duration effective from June 2007

Section 10. This section relates to both opportunities for permanent positions and access to training opportunities to enhance skills career opportunities and occupational mobility. There was no evidence presented to be either by way of submission or at the Hearing that the Complainant as a Fixed-Term Employee was informed by the Respondent of permanent posts although the evidence also was that these posts are advertised in the staff rooms and that all employees, including the Complainant are eligible to apply. The evidence was that the Complainant has not applied for any such posts. The second element of the complaint under this section relates to opportunities for the Complainant to attain a H Dip qualification which would then entitle her to register with the Teaching Council. The evidence was this is a two-year full-time course. There was no evidence presented to me at the Hearing or by way of submission that other permanent employees had been facilitated by the Respondent in attaining such further qualifications. I find there is no breach by the Respondent of Section 10 of the Act.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

In accordance with Section 41(5) of the Workplace Relations Act, 2015 and in view of my findings above I declare the complaints are well founded in part.

CA-00009094-001

Section 6. I declare the Respondent has breached Section 6 of the Act in that the Complainant has been treated in a less favourable manner than other comparable employees whether paid from Public Funds or paid from the private funds of the College. I direct the Respondent to place the Complainant on an annual salary covering 12 months of the year, to be paid monthly, of €49,333.33         (the Complainant is currently paid €37,000 to cover 9 months of the Year). This to be implemented within 42 days of the date of this Decision. I also direct the Respondent to provide the Complainant in writing with the details of the Pension plan of the Respondent.

CA-00009094-002

Section 8. I declare the Respondent has breached Section 8(1) and Section 8(2) of the Act in that the Complainant was not informed in writing by the Respondent of the objective reasons governing the renewal of her fixed-term contracts not was she informed by the Respondent of the objective reasons why she was not being offered a Contract of Indefinite Duration. I direct the Respondent to pay the Complainant compensation of €5000.00 (five thousand euro) within 42 days of the date of this decision

CA-00009094-003

Section 9. I declare the Respondent has breached Section 9 of the Act. I direct the Respondent to provide the Complainant with a Contract of Indefinite Duration effective from June 2007 within 42 days of the date of this Decision.

CA-00009094-004

Section 10. On the basis of my findings above I declare the Respondent has not breached Section 10 of the Act.

Dated:   14th December 2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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