ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00004013
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00005651-001 | 04/07/2016 |
Date of Adjudication Hearing: 13/12/2016
Workplace Relations Commission Adjudication Officer: John Tierney
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
The Claimant commenced employment as Chief Executive Officer (CEO) of a State company (the "Company") on 16 August 2010 for an initial three year period pursuant to a fixed term contract of employment dated 26 January 2012. The Company subsequently sought to extend his employment for a further period of four years from the expiry of his initial contract on 16 August 2013, by way of a further fixed term contract of employment dated 5 June 2013 (the "Second Fixed Term Contract"). As the Claimant is on a fixed term contract the arrangement between him and the Company is governed by the Protection of Employment (Fixed-Term Work) Act 2003 (the "Act"). Section 9 of the Act provides that the aggregate duration of successive fixed term contracts of employment shall not exceed four years. It further provides that any term in a fixed term contract which purports to contravene this section shall have no effect and the contract shall be deemed to be a contract of indefinite duration. As such, he is and has, since 16 August 2014, been employed by the Company on a contract of indefinite duration. We note that the Company, in an attempt to avoid the operation of the above provision of the Act (and we assume as a purported objective justification for not offering him a contract of indefinite duration pursuant to section 9(4) of the Act), expressed the following view in the cover letter accompanying the Second Fixed Term Contract: “It is the well-established policy of the Government that statutory positions such as that held by you ought not to be the subject of permanent appointment. It is the view of the Government that the interests of good governance and administration in State bodies would not be serviced by having the same person in charge of a State body for an indefinite period and that it is important that statutory bodies (or, where appropriate, other appointing bodies) should be in a position to decide periodically whether to appoint a different Chief Executive. This approach is reflected in the position pertaining to other senior appointments in the public sector, such as Secretaries General in the Civil Service, Local Authority Managers and other such offices”. This attempt at objective justification has never been accepted by the Claimant and is utterly rejected. The Company’s rationale takes no account of the individual circumstances and nature of the position of Chief Executive of the Company, and is not capable in any way of constituting legitimate objective grounds (for the purposes of the Act or otherwise) which could justify a denial of the Claimant’s individual employment rights under the Act. The Company is fully aware that a number of Chief Executives employed by other similar companies are employed under contracts of indefinite duration (having initially been employed on fixed term contracts). Further, on 2 January 2015, the Chairperson of the Company wrote to the then Minister for Transport, Tourism and Sport with respect to the Claimant, recommending that "all appropriate action be taken to ensure a contract extension". The Remuneration Sub-Committee supported the Chairperson's efforts to extend his contract of employment. All this undermines any veracity or credibility to the purported objective justification relied on by the Company or the Government. The Claimant is seeking your confirmation that he is in fact employed by the Company as Chief Executive Officer on a contract of indefinite duration. |
Respondent’s Submission and Presentation:
The terms of the Claimant employment is determined by s 35 of the Harbours Act 1996 which provides for the board of directors and the Minister for Transport, Tourism & Sport to decide.
The objective grounds on which the Respondent based its decision to offer the Claimant a further fixed term contract were the established policy of the Government that statutory positions would not be the subject of permanent appointment or periods in excess of seven years. This is in the interest of good governance and administration in State bodies as per the letter sent to the Claimant on 5 June 2013.
The aforesaid guidelines were published in March 2006 and are referred to in the two services agreements of the Claimant. These guidelines were developed by an interdepartmental; group of assistant secretaries. This document at clause 1.18 provides that ‘Any chief executive appointed after the date of the government decision of the 14th July 1997 may not serve in that position for a total of more than seven years’ The code of practise for governance of State bodies published in 2009 prescribes at clause 2.3 that the board of a State body is required to comply with all statutory obligations applicable to the State body. It is also the case that the objective grounds of the manner in which the Claimant carried out his duties and the desire of the Respondent to ensure the Claimant manage its strategic plan and associated investment programme, to include the role out of the strategic plan from 2013 – 2017 were provided in the letter of 5 June 2013 as reasons to justify the non-provision of a contract of indefinite duration. There was compliance with s. 8 of the Fixed-Term Work Act 2003
A copy of the code of practise and relevant correspondence was provided to the Hearing.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have considered the submissions of both parties. The objection grounds cited under s. 8 of the 2003 Act by the Respondent are ‘Government policy’. However, I am satisfied from the evidence presented on behalf of the Claimant; he qualifies under the terms of the Protection of Employees (Fixed-Term Work) Act 2003 for a contract of indefinite duration. ‘Government policy’ cannot interfere with the application of the law as set out under the terms of the 2003 Act.
I therefore find that the Claimant is entitled to a contact of indefinite duration. I also award €45,000.00 in compensation.
Dated: 15 March 2017