ADJ-00006770

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00006770

Parties:

Complaint:

Date of Adjudication Hearing: 02/05/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, 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

Background:

The Respondent is a third level educational institute.

The complainant commenced employment with the Respondent in September 2007 on a fixed term contract as an hourly paid, part-time "Associate Lecturer" for the period September to May, teaching at night. The Complainant is paid an hourly rate of €63.04 per teaching hour.

In the summer of 2016 the Complainant applied to the Respondent for a Contract of Indefinite Duration (CID). On 23^rd August 2016 the Respondent issued the Complainant with a CID effective from 1^st September 2016.

The Complainant was not happy with the terms and conditions contained in the CID, which he submits are not in compliance with legal obligations under the Act. The Complainant wrote to the Respondent through his solicitor, advising that he felt that he "was being treated less favourably than a comparable permanent employee."

The Complainant's solicitor wrote to the Respondent on 30^th August advising that the CID was not in compliance with legal obligations under the Protection of Employees (Fixed-Term) Act 2003.

On 12^th December the Respondent replied to the Complainant's letter denying that the Institute was in breach of its statutory obligations.

The matter was not resolved and the Complainant was advised not to sign his CID. A complaint was received by the WRC on 19^th January 2017 under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003.

In his submission the Complainant has specified terms that he argues are in breach of the Act.

Preliminary Matter

At the outset of the hearing the Respondent representative submitted that the Complainant does not have standing to bring this claim under the Protection of Employees (Fixed-Term) Work Act, 2003, as he is not a fixed term employee, nor, the Respondent submits, was he at the date of lodging the claim as his most recent fixed term contract had expired in April 2016 (more than 6 months before lodgement of the claim). The Respondent put forward the view that the Complainant was issued with a CID on 23^rd August 2016 and in circumstances where the Complainant has CID status he does not fall within the definition of a fixed-term employee and thus he has no locus standi under the Act.

In response to the Respondent's preliminary argument the Complainant's spokesman agreed that the Complainant has CID status, however, what he had been provided with in that contract was not what it should have been and that he was seeking comment from me on what should be in his CID. When questioned by me on about his status the spokesman said "we are CIDs, but they are not paying us."

He also put forward that the Complainant had not been informed by the Respondent that his Fixed-Term contract had expired and that if the Respondent wanted to terminate his Fixed-Term contract in April they should have done so properly; the Complainant is on call for the summer exams which take place in May. There had been no notice of termination of the Fixed-Term contract (FTC). In fact, it was submitted by the Complainant, no FTCs were issued for 14/15 or 15/16.

The Respondent submitted that all FTCs ceased in April and that there was no evidence that he was on a FTC. They had been issued with CIDs and therefore they had no standing.

Findings on Preliminary Matter

In the case of Hanniffy v Athlone IT FTD117, a case taken under the same Act, the Court concluded, inter alia that:

"Nonetheless, if the Claimants were not fixed-term workers within the meaning of the Act, they cannot have locus standi under the Act and the Court could not have jurisdiction to grant them any relief under the Act."

Clause 2, Scope, of the European Directive No. 1999/70/EC of 28 June 1999, concerning the Framework agreement on Fixed-Term Work, from which the 2003 Act is derived, states:

Section 2 of the Act provides the following definition;-

“fixed-term employee” means 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 programme;

In this instance the Complainant has agreed that he is employed under a Contract of Indefinite Duration. That being the case he cannot be a "fixed-term work employee" and as such has no locus standi to maintain these proceedings.

Regarding the claim made about the contents of the CIDs raised by the Complainant, in this instance I do not have jurisdiction to hear such complaints.

Dated: 08 June 2017

Workplace Relations Commission Adjudication Officer: Roger McGrath