Complainant

Respondent

Anonymised Parties

A Clerical Officer

A Government Department

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-00009061-001

13/01/2017

The Complainant was employed on 30 October 2012 as a clerical officer. She was engaged on a fixed purpose contract which was to facilitate the implementation of the Public Service Card scheme. The Complainant has over four years of service and claims a Contract of Indefinite Duration.

1. The Complainant’s contract commenced on 30 October 2012
2. The contract specified that the contract was a fixed purpose contract which was to facilitate the national implementation of the Public Service Card Scheme.
3. No end date was specified in the contract, nor was any determining event specified. As such the contract has been ongoing for over four years and the Complainant’s duties have merged with other clerical officer duties.
4. Despite her duties being exactly the same as every other clerical officer, the Complainant has no job security because the implementation of the Public Service Card Scheme is ongoing and there is no determining date to end to this process.
5. There have been stages to the implementation of the scheme, registering people, issuing cards etc. however because the implementation of the scheme has been a rolling process, it is not possible for the Complainant to establish when her contract will end.
6. Now the PSC work has become so extensive, all clerical officers are in part doing work which involved a delivery of the scheme. In this way the work of all clerical officers are indistinguishable from one another; in part PSC roll-out, in part general C.O. duties.
7. The delivery of the PSC has become a longer process than was initially estimated.
8. The target of issuing 3 million cards by the end of 2017 is now unlikely given that by May 2016 only 1.8 million people have received it
9. Given that the work is ongoing and an end date of the process is unknown and the work has become amalgamated with general duties the entitlement to a CID has been established
10. No objective grounds to justify not issuing a CID have been set out.
11. A justification was proposed at the hearing which was, the end of the process has now been deemed to be the date that the contract with the card issuing company comes to an end, at the end of 2017.
12. The first occasion that the Complainant has learned of this end date was at the WRC hearing
13. It is submitted that this is an arbitrary date which has been selected on a cynical basis in order to defeat claims CID claims that are pending.
14. No valid explanation has been provided to show why this arbitrary date, which was not set out in the agreement between the temporary clerical officers nor were the employees told about it, has been selected.
15. The Complainant’s working day is general clerical duties for the full day, bar approximately 20 minutes spent on PSC work.
16. Since she started in 2012 the Complainant’s work has always been a mixture of general duties and PSC work. This is the case with all clerical officers in her place of work, whether they are temporary or permanent.

1. Temporary Clerical Officers were employed on a fixed purpose, namely to assist with the beginning of the roll out of the card.
2. This was expressly set out in the contract signed by the Complainant in October 2012
3. The Complainant at all times knew that the employment was temporary and for a specific purpose, namely to deal with the initial extra work load of setting up the PSC scheme
4. It was never the intention that these temporary clerical officers would become permanent because they were required only for this specific purpose.
5. There was no need for more clerical officers to cover general duties in 2012, nor is there now.
6. It is not a fixed term contract, it is a fixed purpose contract and the determination of that contract, in terms of at which point in the “beginning of the roll out” that it occurs, is a matter to be determined by the Respondent, depending on need for clerical officer staff.
7. That determining event has now been decided and it is the date that 3 million people are issued with the cards and the contract with the card supplier and the Respondent comes to an end. This will be at the end of 2017.
8. It accepted that the national roll out of the PSC process will not end at that point, but the Complainant was not contracted to stay until the end of the process, it was the beginning of the process that she and other temporary clerical officers were required.
9. It was never intended that the staff would be retained until the process was complete, because they were not needed at the completion phase.
10. The increase in clerical work was at the initial stages of the PSC scheme
11. The fact that the Complainant spends only 20 minutes per day on PSC work, according to her own submission, demonstrates that the PSC work has now declined and that there is no need for the Clerical Officers to be maintained in these posts.
12. There is simply not enough general clerical officer work for the temporary officers to be retained.
13. The purpose for which she was engaged will end in December 2017, her work will not be required after that point.
14. In 2012 it was not possible to know when the requirement for extra staff would end, hence the reason why it was a fixed purpose as opposed to fixed term contract.
15. The purpose of the temporary contract was clear, it was to assist with the beginning of the roll out of the card. That purpose is a legitimate objective which is appropriate and necessary and it now has an end date.
16. There is consequently no entitlement to a CID.

The difficulty for the Respondent is that they are attempting to rely on a clause in a contract to opt out of the provisions of the Protection of Employees (Fixed Term Work) Act 2003, in particular section 9 (2) which is drafted expressly to prevent this from occurring.

The Complainant has met all the criteria to meet the entitlement to a CID, having completed in excess of 4 years employment with the Respondent.

In these circumstances the Respondent can only defeat the operation of the Act is they can demonstrate that the fixed term contract is necessary because there are legitimate objective grounds which justify it and that it is appropriate and necessary (section 7 (1) of the Act).

I am satisfied that the work being done by the Complainant involves both general clerical and PSC work and I accept her evidence that this has been the case since she started in 2012.

I am satisfied that the PSC roll out by the Respondent has taken longer than was envisaged.

I am satisfied that the PSC process is not complete, nor will it be complete for some time.

I am satisfied that the work being done by the Complainant is both general clerical work and PSC related work. I am also satisfied that this has become the case with all clerical officers in her work place (whether temporary or permanent) due to the passing of time.

I am satisfied that the contract – a fixed purpose as opposed to fixed term - was silent on the event that would determine the contract.

I am satisfied that the Complainant was not advised on the event that would determine her contract until the date of the WRC hearing.

I accept that determining event is now the date on which the contract between the Respondent and the company, that supplies the cards, comes to an end and this is at the end of 2017. However in my view that date or event is an arbitrary one and is an event that could not have been known of by the Complainant.

It is unfair to allow a fixed purpose contract to be determined on an arbitrary date that is chosen by an employer after rights to a CID have already been accrued. It is precisely this; holding an employee on a string of uncertainty, that the 2003 Act seeks to avoid.

I do not accept that legitimate objective grounds have been set out by the Respondent. In my view there was another way to deal with a temporary need of staff, which was through fixed term contracts, at least in that way the Complainant would know of a cut off date that she could work around and have certainty about. But even if this were done in this case, where four years have passed, she also would have been entitled to a CID because that is the purpose of the 2003 Act. An employer cannot enjoy benefits of several years of an employee’s work without giving some degree of job security to that employee.

If it were to be otherwise, the Respondent could be permitted to keep an employee working on an insecure basis and even after 8 or 10 years work, if the purpose is complete, the employee would have no rights if they were let go, yet meanwhile their permanent counterparts doing identical work would have the benefits of all the protective legislation.

I accept the evidence of the Complainant that her duties have been subsumed into the same general and PSC duties as are performed by the other clerical officers in her work place. Therefore I can find no basis upon which a CID should be refused.

I am guided by the Labour Court decision of Railway Procurement Agency v. Allan Bell and Ors [Labour Court FTD 097].

I find the Complaint to be well founded and I find that the Complainant should be issued with a Contract of Indefinite Duration.

I do not make any award of compensation

Contract of Indefinite Duration – Protection of Employees (Fixed Term Work) Act 2003