FTD172

The Adjudication Officer in a decision dated 15^thFebruary 2017 decided that the Appellant’s complaint could not succeed as she was not a Fixed Term Employee within the meaning of the Act.

Background

The Appellant was employed by the Respondent as a permanent pensionable employee in 2000 and continued to be so employed at the date she made her complaint to the Workplace Relations Commission on 8^thMarch 2016 and at all times between those dates.

The Appellant was employed at the grade of Staff Officer in May 2012. At that time the Respondent advertised a competition for the appointment of Temporary Senior Staff Officers for a period of up to three years. The Appellant applied for a position of Temporary Senior Staff Officer. She was notified by letter dated 12^thDecember 2012 that she was being offered an appointment as ‘Senior Staff Officer – Temporary Confined up to 3 year contract’ with effect from 2^ndJanuary 2013. The Appellant confirmed by e-mail dated 18^thDecember 2012 that she was accepting the offer. She was subsequently appointed to the position of Temporary Senior Staff Officer.

The Appellant was notified in December 2015 that she was to return to her Grade of Staff Officer which she did in early 2016.

Preliminary matter

The Respondent submitted to the Court that the Appellant was not a Fixed Term Employee within the meaning of the Act at any material time and consequently could not maintain a complaint under the Act.

The Court decided to consider this matter at the outset in view of the fact that, were the Court to determine that the Appellant did not in effect have locus-standi to make the within complaint, then the entire matter before the Court would fall.

Position of the Appellant

The Appellant maintained that she never understood that she could be returned to the Grade of Staff Officer at any time after her appointment as a Temporary Senior Staff Officer. She submitted that her contract as a Temporary Senior Staff Officer was in effect a Fixed Term Contract. She maintained that she performed very effectively as a Temporary Senior Staff Officer filling a position previously held by a permanent Senior Staff Officer.

Position of the Respondent

The Respondent submitted that the Appellant was never employed as a Fixed Term Worker and was at all material times employed on a permanent pensionable contract of employment which amounted to a contract of indefinite duration within the meaning of the Act. The Respondent submitted that at no material time was the Appellant’s status or position as a permanent member of the staff of the Respondent at risk or under threat.

The Respondent submitted the cases of Kelly v Louth Council [FTD1320] and Gallagher v Sligo County Council [FTD1425] as authority for the proposition that the Appellant did not have locus-standi under the Act for the making of the within complaint.

The Law

The Protection of Employees (Fixed Term Work) Act 2003 transposes Council Directive No. 1999/70/EC into Irish law.

The Directive states at paragraph 14 and (17) as follows

• (14) The signatory parties wished to conclude a framework agreement on fixed-term work setting out the general principles and minimum requirements for fixed-term employment contracts and employment relationships; they have demonstrated their desire to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination, and to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

  (17) As regards terms used in the framework agreement but not specifically defined therein, this Directive allows Member States to define such terms in conformity with national law or practice as is the case for other Directives on social matters using similar terms, provided that the definitions in question respect the content of the framework agreement;

Article 1

• The purpose of the Directive is to put into effect the framework agreement on fixed-term contracts concluded on 18 March 1999 between the general cross-industry organisations (ETUC, UNICE and CEEP) annexed hereto.

• The purpose of this framework agreement is to:
  • (a) improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination;

    (b) establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

• 1. This agreement applies to fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in each Member State.

• 1. For the purpose of this agreement 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.

The Act transposed the Directive in relevant part in the following terms

Interpretation

• The meaning of the term fixed term employee for the purposes of the 2003 Act is expressed in terms identical to the meaning set out in the Directive
  • “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 ….

• “the protection of the Act is conferred solely on fixed-term employees and a complaint under the Act can only be entertained if it relates to a period of fixed-term employment.

• Accordingly the Court finds that the Complainant was at all times a permanent employee of the Respondent Council. 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.

The Court concludes that at all material times the Appellant was employed as a permanent employee on a contract of employment of indefinite duration by the Respondent and consequently she does not have locus-standi to maintain the within appeal.

Determination

The Complaint of the Appellant is not well founded and the Appeal fails. The decision of the Adjudication Officer is affirmed.

Signed on behalf of the Labour Court



Kevin Foley
CR______________________
2nd June,2017Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.