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-00007109-001

8^th September 2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act 2003.

CA-00007111-001

8^th September 2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act 2003.

CA-00007112-001

8^th September 2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act 2003.

CA-00007113-001

8^th September 2016

PSEU was submitting that the Respondent was in breach of the 4 complainants rights under the Protection of Employees (Fixed-Term Work) Act 2003 and were seeking a finding and decision that the each of the 4 complainants were, in accordance with the provisions of Section 9 of the 2003 Act, entitled to contracts of indefinite duration in the positions they held at the time of the referral of the complaints, 8^th September 2016, and the Respondent was denying and rejecting the complaints.

PSEU said that in April 2011, following an Adjudication Finding under the terms of the Public Service Agreement 2010 – 2014 on 13^th December 2010 the Respondent appointed a number of Higher Executive Officers, the complainants, to the duties of Assistant Principal Officer in the Department as Appeals Officers.

The complainants were paid a Higher Duty Allowance for the performance of the work of an Appeals Officer, which is graded as Assistant Principal Officer.   This Allowance increases the complainants’ remuneration to that of an Assistant Principal Officer.

The complainants received letter from the Department confirming their appointment for a period of 2 years in the grade of Acting Assistant Principal Officer.   In March 2013, this contract was extended for a further 2 years.   In March 2015, a further extension of 2 years was granted.  

PSEU said that in June 2016, the complainants were informed that their contracts would not be renewed after March 2017.

PSEU said Section 2(1) of the 2003 Act provides:

“ ‘Employee’ means …….. a person holding office under or in service of the State (including a civil servant within the meaning of the Civil Service Regulation Act 1956) shall be deemed to an employee employed by the state or Government).

PSEU said that Subsection 2(1) of the 2003 Act further states: “Fixed-Term employee means a person having a contract of employment entered into directly with an employer where the end 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.”

Section 5(1)(a) provides:   “The permanent employee and the relevant fixed-term employee are employed by the same employer or associated employers and one of the conditions referred to in subsection 2 applies”

PSEU said that Section 5(2) is also satisfied as both the permanent employees in the Assistant Principal Officer grade and the fixed-term employees acting in that grade are doing work that is the same or is of a similar nature.

PSEU said that Section 9 of the Act provides:   “where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on with this Act is passed the aggregate duration of such contract shall not exceed four years.”

PSEU said that subsection 9(3) provides: “Where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term of a fixed-terms contract shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.”

PSEU said that the complainants are doing work that is the same or of a similar nature to that of permanent assistant principal officers in the Appeals Office.   PSEU said that since 2011 there have been 16 appeals officers appointed at Assistant Principal Officer Grade.   PSEU said that in discussions with the Department on this matter the Department have confirmed that they do not intend reducing the numbers of Appeals Officers and that the posts the complainants are currently occupying will be filled in due course.   PSEU said the Department have further stated that they wish to have the complainants’ remain as appeals officers continuing to carry out the same duties they have since their initial appointment in 2011, but without receiving the Higher Duty Allowance.

PSEU said that this is a blatant misuse of temporary contracts and PSEU believe it is in contravention of Section 5, 6 and 9 of the 2003 Act.

PSEU said they are of the belief that because the complainants were acting in a temporary capacity in higher duties that they are equivalent to fixed-term employees and that by renewing the contracts on more than two occasions exceeding the four years stipulated without any of the necessary objective justifications then Contracts of Indefinite Duration should be awarded to the four complainants.

PSEU said that civil servants are not precluded from taking a case under Section 14 of the Act, which deals with exclusions of persons and other provisions.   PSEU said there is no question as to the capability of the complainants as they have always obtained satisfactory ratings under the Performance and Development Systems and have not had any complaints about the standard of their work.

For all the foregoing reasons PSEU and the complainants sought that the complaints be upheld in full.

The Respondent was denying all of the complaints of the 4 complainants.

The Respondent said the complaints are being taken by PSEU under the Protection of Employees               (Fixed-Term) Work Act 2003 on behalf of the 4 complainants.   They said the complaints are that as each of the 4 complainants had their assignment on an allowance basis to the duties of Assistant Principal Officer extended on two or more occasions they are entitled to contracts of indefinite duration.

The Respondent said that the 4 complainants are established civil servants appointed under the Civil Service Regulations Act 1956 amended by the Civil Service Regulation (Amendment) Act 2005.   They are each permanent employees.    The Respondent said that the commencement of employment date for each of the complainants’:

• No.   1.   19^th November 1973
• No.   2.   22^nd February 1982
• No. 3.   23^rd August 1971
• No.   4.   23^rd January 1975

The Respondent said that on 4^th April 2011m the complainants were given a ‘Higher Duties Allowance’ to undertake the duties of an Assistant Principal Officer in the Respondent’s Appeals Office for a period of 2 years.     The Respondent said that this was extended for a further 2 year period in 2013 and again in 2015.   On 13^th June 2016, the complainants were informed that the ‘Higher Duties Allowance’ would cease on 31st March 2017.

The Respondent said that Higher Duties Allowances are widely used in the Department to pay employees who undertake higher duties on a temporary basis and currently 205 ‘Higher Duties Allowances are being paid.

The Respondent said that the Protection of Employees (Fixed-Term Work) Act 2003 define a “fixed-term employee” as “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.”

The Respondent said that the 4 complainants concerned are not, and never were, fixed-term employees, but rather are long-standing permanent employees who were assigned to higher duties on a temporary basis.   The Respondent said that a ‘Higher Duties Allowance’ is not a contract of employment.   The Respondent said that while these Allowances have been terminated, the employment has not been terminated and the complainants’ status continues to be that of permanent employees.

The Respondent said that the Protection of Employees (Fixed-Term Work) Act 2003, does not apply to these cases and they submitted that accordingly the complaints are not well founded and they should be rejected.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

An employee cannot be a permanent and a fixed-term employee for the same employer at one and the same time.

It is a fact, not in dispute, that each of the complainants is and was at all times a permanent and pensionable employee of the Respondent.   All that occurred in the complainants’ cases was that they were (temporarily) reassigned to another position; a reassignment within an employment does not change an employee’s employment status.   At all times the complainants continued to hold permanent positions and at the end of the temporary reassignment they will simply move back to their original substantive posts.

Section 2 of the Protection of Employees (Fixed-Term Work) Act 2003 describes a ‘permanent employee’ and it states that: “ “permanent employee” means an employee who is not a fixed-term employee”

Based on the foregoing I must find that each of the 4 complainants was on a permanent contract of employment at the time they made their complaints, and indeed at all material times, and therefore they have no standing to maintain complaints under the 2003 Act.

Based on the above findings the following are my decisions in relation to each of the complaints made by the 4 complainants.

1   CA-00007109-001:                                                                                                                                          Based on the above findings I must find and declare that the Complainant has no standing to maintain a complaint under the 2003 Act and that accordingly his complaint under the Section 14 of the 2003 Act is not well founded; it is rejected and is not upheld.

2     CA-00007111-001:                                                                                                                                                    Based on the above findings I must find and declare that the Complainant has no standing to maintain a complaint under the 2003 Act and that accordingly his complaint under Section 14 of the 2003 Act is not well founded; it is rejected and it is not upheld.

3   CA-00007112-001:                                                                                                                                             Based on the above findings I must find and declare that the Complainant has no standing to maintain a complaint under the 2003 Act and that accordingly his complaint under Section 13 of the 2003 Act is not well founded; it is rejected and it is not upheld.

4     CA-00007113-001:                                                                                                                                            Based on the above findings I must find and declare that the Complainant has no standing to maintain a complaint under the 2003 Act and that accordingly his complaint under Section 13 of the 2003 Act is not well founded; it is rejected and it is not upheld.