ADJ-00006521

Complainant

Respondent

Parties

Engineer

Local Authority

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-00008875-001

20/12/2016

The complainant is employed in an executive engineering position with a local authority. From September 2008 until June 2016 the complainant was acting up in a more senior position, this appointment being renewed every three months. In May 2016 the complainant was advised by the respondent that this arrangement would cease at the end of June 2016. The complainant claims that this is a breach of the Protection of Employees (Fixed-Term Work) Act, 2003

The complainant had filled the more senior role for almost 8 years.

There was no discussion nor any reason given when he was advised that this role was being terminated.

Consequent to that decision the complainant lost his acting-up allowance.

The complainant should have been made permanent in his position as he had completed a series of 3 month contracts over an 8 year period.

The complainant is a permanent employee with the respondent and therefore cannot have a claim under the Act.

Without prejudice to the above issue the financial situation prevailing in 2008 meant that positions were being filled on an acting basis and on a 3-month cycle.

There were other members of staff in the same situation.

Agreement to fill a number of positions on a permanent basis was granted in October 2015.   Senior positions such as the one in question have to be filled from a national panel. The complainant could not have an automatic right to be appointed.

Preliminary Issue:

The respondent raised as a preliminary issue the status of the complainant with regard to bringing a claim under the Act. The complainant is and has been since March 2008 a permanent, full-time employee of the respondent. In June 2008 the complainant successfully applied for a position as an Acting Senior Engineer. The appointment was initially for 3 months or “pending the making of alternative arrangements to fill the post.” This appointment was renewed on a 3 monthly basis thereafter and the renewal letter included a clause stating that the appointment was continuing “pending a review of funding / having regard to the need to review organisation structures etc”. Because of the then current national financial position there was a moratorium on permanent appointments by local authorities. The complainant’s situation continued until 10 May 2016 when he was advised by letter that his acting position would cease with effect from 30 June 2016 “as arrangements have been made to fill the position on a permanent basis in line with the council’s agreed Work Force Plan.” The letter went on to state that the complainant would revert to his substantive post with effect from 1 July 2016. The respondent stated that the complainant was never a fixed-term worker but was in fact always a permanent worker in an acting-up capacity.

The situation that the complainant found himself in was not unique. A number of staff in the respondent’s employment were in similar positions and indeed this scenario was replicated in other local authorities throughout the country. These issues have been the subject of discussions at national level and agreement has been reached on a method of filling vacancies on a permanent basis.   These appointments are subject to competitions under the direction of the Public Appointments Service. In addition, the local authority has to apply for permission to make these permanent appointments.

I have examined the complainant’s contract of employment. Clause 3 specifies the position as permanent and goes on to state that “the position is full time, permanent and pensionable”. The Protection of Employees (Fixed-Term Work) Act, 2001 defines a permanent employee as follows:

“permanent employee” means an employee who is not a fixed-term employee.

It follows therefore that, as the complainant was at all relevant times employed as a permanent employee by the respondent, he cannot under the Act be a fixed-term employee.   I therefore find that the complaint cannot succeed.

Complaint No. CA-00008875-001:

For the reasons set out above I find this complaint not to be well founded and it therefore fails.