ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002292

Complaint for Resolution:

Date of Adjudication Hearing: 27th July 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 8^th March 2016, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Protection of Employees (Fixed-Term Work) Act. The complaint was scheduled for adjudication on the 27^th July 2016. The complainant is a local authority official and the respondent is a local authority. This case was heard with that of a similar complaint from a colleague of the complainant’s.

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General of the Workplace Relations Commission, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

The complainant commenced working for the respondent on the 20^th September 2000. In the complaint form, the complainant states that she has been penalised for invoking her entitlements under the Protection of Employees (Fixed-Term Work) Act or for refusing to cooperate with a breach of that Act or to avoid giving a contract of indefinite duration. The complainant refers to section 5a)(i), (ii) and (iii) and section 13(2)(a) and (b). In respect of redress, the complainant seeks redress into the Grade VI role on a permanent basis, and also seeks compensation.

The complainant outlined that she applied for the temporary Grade VI Senior Staff Officer role in 2012 and was appointed to a post at this grade on the 2^nd January 2013. She was appointed to the debt control function of the local authority, replacing a permanent staff member. She had moved from housing into the finance department. She was now working with new staff and within a new work system. This change in role and department demonstrated how the temporary role was different to an acting role as when a staff member acted up, they were restricted to the same area. The complainant outlined that her new role was challenging as she had to pursue debts owed to the respondent in economically difficult times. This included the collection of the NPPR charge. She also had to manage a disillusioned staff, which had been demoralised by cutbacks and the moratorium. The complainant stated that she did well in the role and improved collection rates. She covered another Senior Staff Officer, who had been out on sick leave.

The complainant stated that there had been temporary appointments over three roles: Senior Staff Officer, Staff Officer and Assistant Staff Officer. She said that she believed that the recruitment process was linked to the moratorium. It had not been stated that she would have to reapply in order to become permanent in the role. She believed that she would be appointed to the role on a permanent basis. In and around the 28^th April 2015, she was told by the Director of Finance that she would have to re-apply for her own job.

The complainant said that she participated in the interview process in October 2015. She had prepared for the interview and had acquired good experience at Senior Staff Officer level. She came 14^th on the panel and it was said that the panel was made up of a younger age profile. On the 23^rd December 2015, the complainant was informed that she would have to revert to her former role. This made her very upset and she felt embarrassed and humiliated. She would no longer be included in the staff directory and lost a role where she had motivated a team of six colleagues. She said that this was unfair as the contract did not refer to her having to reapply for her role and referred to it being for a fixed term.

In reply to the respondent, the complainant said that she had worked hard in the role so that she would later be appointed to the Grade VI role on a permanent basis. She said that she is now in the Architect’s Department, working for a Grade VI appointed off the panel. This colleague had been a Grade V in planning. The complainant is the only administrator in the department, so carries out all those duties. She commenced in this role on the 8^th February 2016.

The complainant exhibits a document provided by the respondent, entitled “terms and conditions of employment” and dated the 2^nd January 2013. It provides that the complainant’s position is that of “Temporary Senior Staff Officer (Confined) up to 3 year contract”. It states “Your employment with [the respondent] will commence on the 2^nd January 2013.” In the section entitled “cessation of employment”, the contract provides “This temporary, fixed term employment shall commence and cease as per the details outlined in page 1 of this statement. However, notwithstanding the fact that this employment is for a fixed term and temporary, [the respondent] reserves the right to terminate your employment prior to the Date of Cessation outlined on page 1, on the giving of appropriate notice set down in the Minimum Notice and Terms of Employment Acts 1973 – 1991. [The respondent] also reserves the right to terminate your employment on grounds of unsatisfactory service, attendance etc.” It further provides “Section 2(2) of the Unfair Dismissals Act, 1977 shall not apply to your dismissal on the expiry of this Contract of Employment, should it not be renewed nor to your prior dismissal on grounds of unsatisfactory service etc., should that circumstance arise.” The contract is signed by both the complainant and on behalf of the respondent on the 19^th December 2012.

Respondent’s Submission and Presentation:

The respondent said that the complainant is a permanent, pensionable employee of the respondent and the Protection of Employees (Fixed-Term Work) Act does not apply in these circumstances. The advertisement of the temporary role had been explicit that the appointment was a temporary one. It stated that no-one had questioned the performance of the complainant in her role. It refuted the allegation made of age discrimination and that while the staff profile had aged, there had been no discrimination in the filling of promotional roles. The recruitment process had been open and transparent. It stated that every local authority had carried out confined competitions to regularise acting and temporary roles. Now, there were open competitions for all promotional opportunities.

Findings and reasoning:

The complainant is a longstanding employee of the respondent, having commenced her employment in 2000. She was appointed to a Grade VI post on foot of a temporary contract and following a selection process. She commenced the role on the 2^nd January 2013 and was informed in December 2015 that she would revert to a Grade V role. The complainant relies on the Protection of Employees (Fixed-Term Work) Act to claim an entitlement to a contract of indefinite duration at the Grade VI level. She also claims penalisation, in particular in the way she was demoted. The respondent denies the claim, stating that as a permanent, pensionable employee, the complainant cannot rely on the Protection of Employees (Fixed-Term Work) Act to assert an entitlement to a particular post. The respondent referred to Labour Court case law, without stating any particular decision or presenting any precedent.

On its face, the contract signed by the complainant and on behalf of the respondent is clearly one for a fixed term. It is explicit in this regard in the paragraph entitled “cessation of employment”. The contract further addresses what happens at the end of the fixed term, for example the Unfair Dismissals Act shall not apply and states the relevant period of notice.

The respondent challenges the jurisdiction of the complainant to rely on the Protection of Employees (Fixed-Term Work) Act. Despite the explicit contents of the complainant’s contract, it is necessary to address this issue in the first instance. The Act provides for the following definition of “fixed-term employee”: “a person having a contract of employment entered into directly with an 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 but does not include : (a) employees in initial vocational training relationships or apprenticeship schemes, or (b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining scheme.” In Council Directive 99/70/EC concerning the Framework Agreement on Fixed-term Work, clause 2 provides that the term ““fixed-term worker” means a person having an employment contract or relationship entered into directly between an employer and a worker where the end of the employment contract or relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event.”

In Louth County Council v Paul Kelly (FTD 1320), the Labour Court considered the position of an engineer who had been seconded to various projects. It held that “In order to come within the ambit of the Act a Complainant must have the status of a fixed term worker. The Court interprets that to mean that a Complainant’s employment must be coterminous with the expiry of a fixed term or fixed purpose contract of employment. A complainant who reverts to their substantive grade and whose employment continues at the end of a fixed term assignment does not enjoy the protection of the Act. In this case the Complainant was at no point a fixed term worker within the meaning of the Act. At all times he held a contract of indefinite duration as an Executive Engineer. At times he applied for and was appointed to temporary assignments and was remunerated accordingly. However at all times he continued to hold a contract of indefinite duration and his employment status was never at risk while on temporary assignment.”

In Frobel College of Education v Marie Raftery (FTD 144), the Labour Court considered whether the employee had severed her employment relationship with a named school following her secondment to the College of Education. On the facts, the Court concluded that the employment relationship with the school had not been severed. On the basis of this finding of fact, the Court concluded the Court finds that at all material times the Complainant was a permanent employee of the School and her employment status was never at risk while on secondment with the Respondent. In order to come within the ambit of the Act a Complainant must have the status of a fixed term worker. As the Court has found in the past a Complainant who can revert to their substantive grade and whose employment continues at the end of a fixed term assignment does not enjoy the protection of the Act.”

Applying the relevant definitions of “fixed-term employee” provided in the Protection of Employees (Fixed-Term Work) Act and the underlying Directive as well as the two Labour Court decisions, the following considerations arise. The central point is what happens to the employee in question after the end of the relevant period or contract. Is their employment at risk? Applying the case law, if an employee reverts to a substantive grade or post after the end of a “temporary” or “seconded” post, they cannot rely on the Protection of Employees (Fixed-Term Work) Act to claim a contract of indefinite duration in relation to the latter post.

In respect of this complaint, I appreciate that the complainant pointed to the difference between “acting up” and her temporary contract; this difference is acknowledged by the respondent, in particular with regard to a named Circular. The complainant was successful at interview and in the selection process in 2012. Despite this, I must assess the complainant’s entitlement to rely on the Protection of Employees (Fixed-Term Work) Act in accordance with the case law. I note that the complainant reverted to a Grade V role after the end of the Grade VI role. Given that the complainant had a subsisting permanent position and this was never at risk, it follows that the Protection of Employees (Fixed-Term Work) Act does not apply.

I appreciate that the complainant feels poorly treated by the respondent and that her time as Senior Staff Officer has not been adequately recognised. While this may be the case, the fact of returning to a subsisting permanent and more junior position cannot, of itself, amount to penalisation. I appreciate that she also raises issues about the 2015 selection process for the permanent Grade VI roles. These issues are outside the confines of a claim made pursuant to the Protection of Employees (Fixed-Term Work) Act. Taking these factors together, I conclude that the complaint does not succeed.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Pursuant to the Protection of Employees (Fixed-Term Work) Act, I find that the complaint does not succeed as the complainant is not a “fixed-term employee” within the definition of the Act and because her reversion to a Grade V role does not amount to an act of penalisation.

Dated:   15^th February 2017