ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002808

Complaint for Resolution:

Date of Adjudication Hearing: 27th July 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 3^rd March 2016, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Protection of Employees (Fixed-Term Work) Act, 2003. The complaint was scheduled for adjudication on the 27^th July 2016. The complainant was in attendance and a Senior Executive Officer attended for the respondent. 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 employment with the respondent on the 8^th October 2000. In the complaint form, the complainant states that he has been penalised for invoking his 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).

The complainant outlines that he is entitled to rely on the Protection of Employees (Fixed-Term Work) Act in order to acquire Grade VI status with the respondent, a local authority. He explained that in 2012, he went through an interview process following his application for a Senior Staff Officer Grade VI role in the respondent’s Housing Department. Having been successful in his application, he was placed on a panel and was to replace a permanent Senior Staff Officer Grade VI. Following his appointment, the complainant fulfilled the duties of the previous incumbent and also covered a Grade VII, who was on sick leave. The new role involved a physical move from one named office to County Hall. The complainant was appointed to the role on the 6^th August 2013. He said that this role had been designated as a “temporary” role and was not an “acting” role.

In the course of 2015, the complainant participated in a confined recruitment process within the respondent for Grade VI roles. This followed a “deal” between the respondent and a named union that posts would be submitted to a confined process. The complainant said that he had been informed that as a result of a Workforce Plan, both temporary and acting roles were included in the process. On the 23^rd November 2015, the complainant learnt that he had been placed 10^th on the panel for nine posts.

Following this, the complainant reverted back to his Grade V substantive role. He stated that this demotion amounts to penalisation and that he had not been treated with dignity and respect. The demotion represented a move from senior management to junior management, and the complainant had lost the respect of newer staff as a result. He had lost out on two days of annual leave as well as future earnings and pension benefits. He was no longer responsible for approving payments and the annual leave of colleagues. Taken together, he had been subjected to disadvantage as a result of the demotion.

In respect of the recruitment process, the complainant said that there had been three named people on the interview panel. He said that he found it difficult to persuade the panel and that his 2.5 years in a Grade VI role had not been reflected in the outcome. He stated that younger, less experienced people had been appointed to the posts. He felt humiliated, penalised and demoralised.

In respect of the claim, the complainant outlined that his fixed-term contract stated that it was a “fixed-term, temporary” contract. He had been appointed to the role after interview. He was aware of other situations where staff had acquired permanent status in roles after three years on a temporary contract. He differentiated his role from an acting up post as he had gone through an interview process; he said that acting roles are not filled via interview. He commented that while the letter of the 11^th December 2015 refers to “long term acting”, he had not been acting up. In reply to the respondent, the complainant said he relied on the terms of his contract. There was a reference to his role in the Workforce Plan, but he had been replaced by a permanent staff member, not off a confined panel.

The complainant exhibits a document provided by the respondent, entitled “terms and conditions of employment” and dated the 6^th August 2013. It provides that the complainant’s position is that of “temporary Senior Staff Officer”. It states “Your employment with [the respondent] will commence on the 6^th August 2013 until 28^th February 2014, or until alternative arrangements are made, whichever is the earlier.” 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 the complainant on the 2^nd August 2013 and on behalf of the respondent on the 1^st August 2013.

The complainant exhibits emails from the respondent indicating that his Temporary Senior Staff Officer Contract has been renewed by order, for example between the 1^st March 2014 to the 30^th June 2014, 1^st July to 31^st July 2014, 1^st August 2014 to 31^st December 2014, 1^st January 2015 to 31^st March 2015 and 1^st April 2015 to 30^th June 2015.

Respondent’s Submission and Presentation:

The respondent outlined at the adjudication that it relied on Labour Court authority which determined that local authority staff cannot rely on the Protection of Employees (Fixed-Term Work) Act in these circumstances. It said that the complainant is a permanent, pensionable employee.

The complainant had applied for a temporary role, advertised in 2012. Following the issue of a named Circular, the respondent could not create acting up roles. The respondent decided, as an alternative, to create temporary Senior Staff Officer and Assistant Staff Officer posts. The respondent stated that acting appointments were done without competition, with the most senior, suitable person appointed. Acting was generally a short-term role, but had morphed into longer term arrangements. The respondent chose to create a temporary competition when restrictions had been applied to acting appointments. It stated that temporary and acting posts had the same status and were covered by the Haddington Road Agreement. The representative of the respondent said that as far as he knew, no staff member on a temporary contract had been assumed into a permanent post. There had been no agreement that staff on temporary contracts would be assumed into permanent posts.

The notice of the posts issued in May 2012 and stated that the roles could be for three years. The respondent acknowledged that the contract provided to the complainant referred to it being for a “fixed term”. It stated that the contract was explicit as to the limited nature of the role. It submitted that the complainant is a permanent, pensionable employee and that the temporary contract did not amend this.

The respondent later developed a Workforce Plan and this conveyed sanction to regularise temporary posts and determined how they would be filled. The aim had been to regularise the posts and not the people, and the process was open to all qualified staff. There had been nine Senior Staff Officer posts to be filled. The representative of the respondent did not know how many had been “temporary” posts, i.e. where the person holding the post previously had a temporary contract.

In respect of the 2015 competition, the respondent stated that it was not relevant that the complainant was not a member of the named union as this union had negotiating rights across the sector. In respect of the interview process, this had been a competitive interview process where selection had been made on merit. It was up to each candidate to prove themselves at interview. The respondent outlined that following this process, 13 staff had to revert to their substantive grades. They had not been successful in continuing in their roles. No new roles had been created.

In reply to the complainant, the respondent said that the confined recruitment process had filled one permanent role in the Housing Department and it was not the specific post that the complainant had performed.

Findings and reasoning:

The complainant is a longstanding employee of the respondent, having commenced his employment in 2000. He was appointed to a Grade VI post on foot of a temporary contract and following a selection process. He commenced the role on the 6^th August 2013 and was informed by letter of the 23^rd December 2015 that he 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 Grade VI. He also claims penalisation, in particular in the way he 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 of 2013, 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 as to 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 above decisions, 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 his 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 2013. 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. The letter from the respondent of the 23^rd December 2015 refers to the complainant reverting to the substantive position of Staff Officer. 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 his 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 he 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.

CA-00003019-001

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 his reversion to a Grade V role does not amount to an act of penalisation.

Dated:   15^th February 2017