ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00006707
Parties:
| Complainant | Respondent |
Anonymised Parties | A worker | A government the respondent |
Complaint(s):
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-00009060-001 | 13/01/2017 |
Date of Adjudication Hearing: 25/09/2017
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other act as may be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.
The Complainant herein has referred a matter for dispute resolution under 14 Protection of Employees ( Fixed- Term Work) Act, 2003 and the referral has been made within six months of the initial circumstances of the relevant contravention.
Background:
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Summary of Complainant’s Case:
The complainant alleges that she has been in continuous employment with the respondent from the 17th of September, 2012 - to date. In accordance with Section 7 of the Act, she states that there are no objective grounds justifying less favourable treatment and the respondents have breached Section 7 in this regard. The failure of the respondent to offer and supply the complainant with contracts of employment beyond 2012 demonstrates clearly that there are no objective grounds for less favourable treatment other than the status of the complainant as a fixed term worker. In accordance with Section 9 of the Act, the complainant is entitled to a Contract of Indefinite Duration with effect from the 17th of September, 2016 by operation of law. The complainant is a fixed term worker employed with the respondent in Wexford. Her contract of employment commenced on the 17th of September, 2012 for the purpose of covering a staff member’s absence (as per the terms of the contract) and she has received no further contract and no letters of extension and her contract has no end date. She is performing the full range of Clerical Officer duties. The complainant was initially assigned to work in a particular payment section where she worked until February, 2014. While the complainant worked in the Payment Section she was the only clerical administrative grade in the section at the time. In February, 2014 she was transferred into Maintenance Section where she worked until February, 2015. The office in Wexford was set up in September, 2014 so when the complainant transferred in February, 2015 from the Maintenance Section she was assigned to work in the new Reception Area in the Office. At this time she was also assigned duties in Fresh Claims. However, from July, 2015 to date she has been assigned to work solely on Reception in the Office i.e. Integrated ‘one stop shop’ reception service. In February, 2016 the respondent noted that there was an error in the complainant’s contract. The wording “ the purpose of covering a permanent staff members absence” was written into her contact in error. The complainant was asked to enter into a new contact but she refused to do so as the new contract fundamentally changed the reason for her employment. The complainant alleges she is comparable to permanent employees performing Clerical Officer duties with the respondent nationally within the meaning of Section 6 of the Act. The objective grounds for the less favourable treatment of the complainant, regarding her conditions of employment, are based solely on the status of the complainant as a fixed term employee. Section 7 of the Act provides that a ground is not regarded as objective “unless it is based on considerations other than the status of the employee concerned as a fixed term employee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of a fixed term employees contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer and the treatment is appropriate and necessary for that purpose”. Permanent Clerical Officers and Temporary Clerical Officers perform the same duties across the respondent entity. Fixed -term workers contracts refer to the fact that they can be asked to perform all duties of a clerical nature, therefore if there are means by which the employer could adequately pursue the objective other than less favourable treatment then objective grounds would not be established. The complainant’s contract states that the objective ground is that she is there to provide cover for a permanent staff member’s absence therefore there is ‘no specific task or occurrence of a specific event’. The respondent has in fact taken 2 permanent Clerical Officers into employment in this office in the last 2 years. The complainant performs general clerical officer duties, which can be carried out by any Clerical Officer so we do not believe that it was necessary to retain The complainant on a temporary contract to achieve the aim. The complainant accepts there will always be a need for fixed-term staff however, where an individual has been employed in excess of 4 years, she contends that the respondent must provide and clearly communicate very specific reasons as to why the contract should not be converted to a contract of indefinite duration and this did not occur The duties, the complainant has been performing over the years do not strictly relate to her contract for the reasons outlined and the terms of her contract are no longer relevant as there can be no estimated time of an end date. The complainant was never furnished with clear specific reasons as to why her contract could not be converted into one of a contract of indefinite duration. Having completed more than 4 year’s continuous employment on one fixed term contract that The complainant’s employer has contravened Section 9(2) of the Act and, by operation of Section 9(3) of the Act, her fixed term contract was transmuted into one of indefinite duration by operation of law.
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Summary of Respondent’s Case:
The complainant was recruited on 17th September 2012, from the Temporary Clerical Office She was provided with a temporary contract of employment from 17th September,2012 The complainant ’s initial contract from 17 September 2012 contained a typographical error. The complainant was recruited to facilitate the a particular project; however her initial contract advised incorrectly that it was for the purpose of covering the absence of a permanent staff member. This was a typographical error and was not correct The complainant was always assigned to facilitate the project in Wexford Office and that purpose continues to date. The complainant has provided temporary cover to support the project in Wexford Centre since the start date of her contract. When the complainant brought the matter regarding the error on her contract to the attention of HR Division in February 2016, we immediately issued a revised and corrected contract from 17th September 2012 which confirmed the correct purpose from the original date of assignment. She refused to sign the new contract. The assignment of a TCO for the project is an additional resource provided to offices in order to facilitate the delivery of the project. The contract of employment provides that a TCO will be required to carry out general Clerical Officer duties to facilitate the implementation of the project. It is a matter for a manager to decide how best to use this additional resource in order to deliver the project effectively in the office. It does not necessarily follow that a TCO who has a contract whose objective reason is connected to the project implementation will be doing project work only. Specifically The complainant ’s contract provides for the following: General Clerical duties to begin the roll out of the project on a nationwide basis This stated purpose allows the assignment of the complainant to any clerical duties in the office, as determined by her manager, so as to free up other staff to deliver the project. The respondent’s position is that while we acknowledge that the complainant has over four years’ service, a contract of indefinite duration (CID) is not appropriate as the complainant does not have the successive fixed terms contracts which are required to have an entitlement to a CID under the Protection of Employees (Fixed-Term Work) Act 2003. Once the implementation phase is complete at end-2017 approximately, the contract with the card issuer will cease and the need for temporary staff to support this initial registration process will no longer exist. The issue of the cards will then become part of the respondent’s ongoing operations and will be staffed on a permanent basis as part of the Department’s network. As the objective reason for the contract continues and as the complainant is still facilitating the implementation of the project, it is the Department’s position that she is not entitled to a contract of indefinite duration.
The fixed purpose contract which issued to the complainant from 17th September 2012 advised: This appointment will commence from 17th September 2012 and will be for the purpose of “general clerical officer duties, to begin the roll-out of the Public Service Card on a nationwide basis”. This appointment therefore cannot result in an offer of a contract of indefinite duration. When the objective reason for her contract ceases, The complainant will be given appropriate notice as determined by employment law and her contract will cease. As she has been employed with the Department for over 2 years, she will be due a statutory redundancy payment based on the number of years’ service she will have at the end of her contract. |
Findings and Conclusions:
The complainant’s contract of employment, dated the September, 2012 specifically states “ will be for the purpose of covering permanent staff member’s absence”. The complainant was never told who she was covering for. She did move into different sections. Initially she was assigned to work in a particular payment section where she worked until February 2014. In February 2014 she was transferred into Maintenance Section where she worked until February 2015. In February, 2015 she was transferred from the Maintenance Section to the new Reception Area in the Office. At this time she was also assigned duties in Fresh Claims. However, from July 2015 to date she has been assigned to work solely on Reception in the Office i.e. Integrated ‘one stop shop’ reception service. The respondent states that the complainant was employed as a temporary clerical officer and that the TCO’s are employed as an additional resource in order to facilitate the delivery of the project. In 2016 the respondent noticed an error in the complainant. They state that she was not in fact employed to cover for absences but was employed to facilitate the roll out of the project. They issued her with a new contract of employment. The complainant refused to sign it. The original contract of employment was signed by both parties and it would seems from the complainant’s evidence was acted on by both parties. The respondent cannot unilaterally change the terms of the complainant’s contract. I am satisfied that the original contract from September, 2012 is the relevant contract for the purpose of this dispute. The complainant’s contract has no end date. The fact that she was employed to cover for absent employees can only mean that there is no end date and no end purpose. Section 2 (1) of the Act defines “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” Section 8.—(1) Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is, (a) arriving at a specific date (b) completing a specific task, or (c) the occurrence of a specific event.
The complainant’s September 2012 contract does not have an end date or an end purpose. The respondent did not give to the complainant, as soon as practicable , or at all, a notice in writing of the objective conditions determining her contract of employment. The reason for her employment is to cover for absent members of staff and therefore by its very nature is ongoing and indefinite. Accordingly, I find that the complainant is not a fixed term employee within the meaning of the Act, she is in fact an employee.
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Decision:
Section 41 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.
The complaint ADJ 6707 CA 9060-001 succeeds.
Dated: 20/11/17
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Key Words:
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