Complainant

Respondent

Anonymised Parties

An Employee

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-00009767-001

17/02/2017

The complainant was recruited to the respondent department in September, 2012. He was recruited from the temporary clerical office panel. He was provided with a temporary contract   which stated purposed was to provide general clerical officer duties in order to facilitate the implementation of the public service card. The complainant was contracted to work at a specific place herein after referred to as “place   A”. The contract had no end date. It specifically states, “ the purpose of  general clerical officer duties in place A to facilitate the implementation   of the public service card” In   February, 2014 he volunteered to move to the same project in Tallaght. He remains there to date. He did not receive a statement in written pursuant to the 2004 Act when he moved to Tallaght.  In November, the project ceased permanently in the location the complainant previously worked ( place A) and moved to a   location in the city ( Place B). The complainant, having over four years service, has requested a contract of indefinite duration however the respondent has refused on the basis that the complainant does not have successive fixed term contracts which they say are a necessity under the 2003  act.

The purpose of the complainant’s contract is to facilitate the implementation of the public service card specifically at place A The implementation phase covers the issue of over three million cards to all existing customers of the department and to a broader group where appropriate. The respondent has stated that the date the project will be completed is end December, 2017. The complainant response states that the project is behind schedule and will not be completed until well into 2018.

The complainant states that he  is being treated less favorably than permanent staff members on the basis  that he is on a fixed term contract and the respondent has no objectively   justified grounds for doing so. The respondent has never disclosed their reasoning for denying the complainant a contract of indefinite duration.

Factually the respondent concurs with the majority of the complainant’s evidence. They state that once the implementation phase is complete at end 2017 the contract will with card   issuer will cease and the need for temporary staff to support the initial  registration process will no longer exist. The issue of the public service will  then become part of the Departments ongoing operations and will be staffed on  a permanent basis as part of the Departments intreo network. The objective reason for the contract continues and the complainant is still facilitating the implementation of the card project. When the object reason for his contract ceases, the complainant  will be given appropriate notice that his contract is ceasing and he will be entitled to a redundancy payments has he has over two years service.

Relevant statutory provisions.

Section 2

“fixed-term   employee” means 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 but does not include—

(a) employees in initial vocational training relationships or   apprenticeship schemes, or

(b) employees with a contract of employment which has been concluded   within the framework of a specific public or publicly-supported training,   integration or vocational retraining programme;”

(a) arriving at a specific date,

(b) completing a specific task, or

(c) the occurrence of a specific event.

(2) Where an employer proposes to renew a   fixed-term contract, the fixed-term employee shall be informed in writing by   the employer of the objective grounds justifying the renewal of the   fixed-term contract and the failure to offer a contract of indefinite   duration, at the latest by the date of the renewal.

(3) A written statement under subsection   (1) or (2) is admissible as evidence in any proceedings under this Act

(4) If it appears to a rights commissioner   or the Labour Court in any proceedings under this Act

(a) that an employer omitted to provide a   written statement, or

(b) that a written statement is evasive or   equivocal,

the rights commissioner or the Labour   Court may draw any inference he or she or it consider just and equitable in   the circumstances.

9—(1) Subject to subsection (4), where on   or after the passing of this Act a fixed-term employee completes or has   completed his or her third year of continuous employment with his or her   employer or associated employer, his or her fixed-term contract may be   renewed by that employer on only one occasion and any such renewal shall be   for a fixed term of no longer than one year.

(2) Subject to subsection (4), 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 which this Act is passed, the aggregate duration of such contracts shall   not exceed 4 years.

(3) Where any term of a fixed-term   contract purports to contravene subsection (1) or (2) that term shall have no   effect and the contract concerned shall be deemed to be a contract of   indefinite duration.

(4) Subsections (1) to (3) shall not apply   to the renewal of a contract of employment for a fixed term where there are   objective grounds justifying such a renewal.

(5) The First Schedule to the Minimum Notice   and Terms of Employment Acts 1973 to 2001 shall apply for the purpose of   ascertaining the period of service of an employee and whether that service   has been continuous.

The complainant’s contract is very clearly a fix purpose contract   and not a fixed term contract. At para graph 4. of the contract states:

“ In   accordance with the Protection of Employees ( Fixed Term Work) Act, 2003,   your contract is a fixed purpose contract on the following grounds:

This appointment will commence from the 24   September and will be for the purpose of general clerical officer duties in   XXXX to facilitate the implementation of the public service card.

This appointment therefore cannot result   in an offer of a contract of indefinite duration”.

The fact that the complainant’s place of employment has changed has   no bearing on the legal status of his employment. It is clear from the   evidence of both parties that for the duration of his employment he has   carried out his functions in accordance with those set out in his contract.   The purpose of the contract still exists and will continue to exist until the   implementation phase is complete. That might be at the end of 2017 or it   could continue into 2018 or beyond.

The factual situation of this matter does not fall within Section   9(1), 9(2) or 9(4) of the act in circumstances where the complainant’s   contract has never been renewed. It has not been renewed because the purpose   of the contract still exists and he continues and will continue to fulfil his   contractual obligations until the implementation phase is complete.

The very specific factual situation that exists in this case means   that the duration of the complainant’s employment is not relevant so long as   the purpose of this employment still exists. Once that purpose ends that his   employment, in accordance with his contract must end. In those circumstances,   he is not entitled to a contract of indefinite duration.