ADJUDICATION OFFICER DECISION and RECOMMENDATION

Adjudication Decision Reference: ADJ-00003672

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 24/10/2016 and 22nd June 2017

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 ; Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 and Section 13 of the Industrial Relations Act, 1969 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

1:        Summary of Complainant’s Submission and Presentation:

2:        Summary of Respondent’s Submission and Presentation:

2:1     IR Act Dispute: CA-00006486-001.

This case extended over two days of hearings   the 24^th October 2016 and the 22^nd July 2017. In the interim period between the two dates, at the request of the Adjudication Officer, considerable work was done to resolve the expenses issues. By the hearing of the 22^nd of June the expenses issue had resolved to three outstanding matters.

1. The expense Rate paid for working on a particular Dublin job while staying at his Dublin home address.
2. The question of an advance that the Respondent had paid but was not acknowledged by the Complainant
3. The Refund of monies outstanding for Tools issued to the Complainant.  

The Respondent has fully investigated these issues and is happy that there is no sustainable case involved and that the claim should be rejected.  

2:2     Protection of Employees (Fixed-Term Work) Act, 2003 Complaint: CA-00005350-001  

Time limits: The Complainant lodged his claim on the 20^th June 2016. The issue of complaint, the renewal of the Fixed Term Contract was the 30^th November 2015 and six months form this date would be the 30^th May 2016. Accordingly the claim is out of time.

Notwithstanding this point the Complainant was engaged on three (3) fixed Term Contracts, June 9^th 2014, June 5^th 2015 and November 30^th 2015. In the contracts it was clearly sated that the renewal or otherwise of the Contracts would be based on the objective grounds of “fluctuation in business demand”. This reason applied and the Complainant’s contract was not renewed following the expiry of the last Fixed Term Contract in May 2016.

Additional posts advertised by the Respondent around the time of the Complainant’s non renewal were for qualified Electrical or Mechatronic (University Graduate) Engineers. The Complainant did not have the requisite qualifications.

The Respondent maintained that the objective Justification of fluctuating business needs was well established as a feature of the Respondent’s’ business model and had not been objected to by the Complainant at the time of accepting the Contracts.

Accordingly the Non Renewal of the Fixed Term Contract does not qualify as an Unfair Dismissal under the terms of the Unfair Dismissal Act, 1977. The Claim has no basis and should be refuted in full.                    

3:        Decision:

Section 41(4) 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 , Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 and Section 13 of the of the Industrial Relations Act, 1969

4:        Legislation involved and requirements of legislation:

The Industrial Relations Act, 1969 – a fair and equitable consideration of the issues involved and a considered Recommendation on the issues involved.

The Protection of Employees (Fixed-Term Work) Act, 2003 –a fair and equitable consideration of the issues involved and a considered Adjudication Decision on the issues involved.

5: Consideration of the Evidence and Conclusions drawn leading to a Recommendation and Adjudication Decision:

5:1     IR Act Dispute: CA-00006486-001.

Three issues are involved here; The “Dublin /Staying at Home Rate”, the Tools issue and the Expenses Advance.

5:1 (A)   The Dublin/Stay At Home issue:

In relation to the Dublin Rate the facts were that on a Dublin job the Complainant could stay at home and avoid hotel expenses. The Complainant argued that his base was in the South West of Ireland and it was none of the Respondent’s business where he resided while on a Dublin job. He was entitled to the full away from base expense rate.

This point was argued extensively at the Oral Hearings. It was apparent to me that there was a degree of ambiguity regarding the situation. It would not be unique to the Respondent Employer to have employees travelling on business who might avail of family hospitality and avoid hotel expenses. This point was discussed at the hearing.

The Disputed expenses amount at the time of the hearing came to €2,346.

On the basis of the ambiguity and as a purely Industrial Relations Recommendation, without any precedents or transferability to other employee claims that might arise in this area I recommend that the sum of €1,000 be paid to the Complainant in full and final settlement of this specific expenses issue.

The payments already made to the Complainant for staying in Dublin in the relevant claim period to be deducted from this amount.

In addition I Recommend that he issue of “Staying with Family/Relations” is considered in any revision of the Travelling & Subsistence rules of the Respondent.

5:1 (B)     The Tools Issue:

Again this is not unique to the Respondent and was discussed at the hearing. In his exit documentation the Complainant was required to have the Tool Stores sign off on his exit. . On his exit from the Respondent Form P14 (presented in evidence) was signed by the Respondent Tool Stores and Counter Signed by Security. The dates given were Tool Stores on the 18^th May and Security of the 17^th May 2016. If Tools were an outstanding issue the Tool Stores signature/approval makes no sense.

In plain English the “horse bolted” the day the Tools Store signed off on Form P14 and the Respondent has now to, however reluctantly, accept this fact.

Accordingly I Recommend that the Respondent now consider the Tools Issue as closed and do not seek to recover the €750 from any outstanding payments to the Complainant.

5:1 (C)     The Disputed Expenses Advance.

Having reviewed all the written evidence presented in particular the copies of internal e mails involving the Finance Department and the level of detail that the Respondent HR manager went into on the expenses issue I came to the view that the balance of probability was clearly on the Respondent’s side in relation to the advance.

Accordingly I find no case for the Complainant disputing the Respondent’s actions in seeking to off set the advance from any outstanding monies s

5:2   Protection of Employees (Fixed-Term Work) Act, 2003 Dispute: CA-00005350-001    

5:2 (A)     Time Limits Issue.

I noted the Respondents arguments her e. However as the Complainant was not professionally represented at the time of making the claim and again noting the close proximity of the dates involved (30^th May 2016 to the 20^th June 2016) I allowed the claim to proceed. The powers of an Adjudication officer under Section 41(8) of the Workplace Relations Act, 2015 are referred to.

5:2 (B)     The Substantive issue:

Fixed Term Contracts in themselves.

There is considerable legal precedent is this area both in Ireland (Labour and Higher Courts) and at the European Court of Justice.  

However in this case Section 9 (1) of the Protection of Employees (Fixed-Term Work) Act, 2003 is central and I quote below.

Successive fixed-term contracts.

9

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.

In the case in hand the Complainant’s employment lasted from June 9th 2014 until May 27th 2016. - just under two years and not the four years specified in Section 9(1).

The issue is really one of considering whether or not the policy of issuing Fixed Term Contracts in the first place is illegal and subsequently whether or not the ending of the fixed tern is also illegal.

Considerable legal precedents exist here. Ms. Frances Meenan in Employment Law ( First edition ) -2014 - Round Hall Press quotes from the English court of Appeal (Wall J. ) decision case of Department for Work and Pensions v Webley   [2005] I.C.R. 577 at 586; [2005] I.R.L.R. 288; [2004] EWCA Civ 1745.

“Once it is accepted, as it must be, that fixed-term contracts are not only lawful, but are recognised in the Preamble to the Directive 99/70 as responding, ‘in certain circumstances, to the needs of both employers and workers’, it seems to me inexorably to follow that the termination of such a contract by the simple effluxion of time cannot of itself, constitute less favourable treatment by comparison with a permanent employee. It is of the essence of a fixed-term contract that it comes to an end at the expiry of the fixed-term. Thus unless it can be said that entering into a fixed-term contract is of itself less favourable treatment, the expiry of a fixed-term contract resulting in the dismissal of the fixed-term employee cannot, in my judgment, be said to fall within reg. 3(1) [of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002].”

This case was noted approvingly in the Irish Labour Court case of Health Service Executive v Prassad. (FTD062).

In other words the nature of Fixed Term Contracts are acceptable and cannot , on terms of time and expiry of time /contract limits provide a good grounds for action ,in this case under the Unfair Dismissals Act,1977, to a Complainant.

5:2 (C)     Objective Grounds /Non renewal/Renewal

The issue now becomes one of considering if there are Objective Grounds to justify the non renewal of the Fixed Term Contracts.

Again considerable legal precedent exists here. Again I refer to Ms. Frances Meenan in Employment Law (First edition) -2014 - Round Hall Press –

Section 6-64

“The grounds relied on must be justified as being for the purpose of achieving a legitimate objective of the employer and such treatment must be appropriate and necessary for that purpose. The Labour Court relied on the three-tier test for objective justification in indirect gender discrimination cases formulated by the ECJ in Bilka-Kaufhaus GmbH v Weber von Hartz.97 The elements of this test were analysed in detail by the Labour Court in Inoue v NBK Designs Ltd.98 (FTD062).

The court stated that:

“This test requires that the court be satisfied that the reasons relied upon

(a)

correspond to a legitimate objective of the employer

(b)

are appropriate with a view to achieving the objective pursued, and

(c)

are necessary to that end.”

In the case in hand considerable oral evidence was given by Mr.X, the Respondent HR Manager of the vary variable needs of the Respondent business and the constant challenges of balancing Staff resources with Business Needs in what is essentially a very international business, Permanency of Employment in the Service end of their business is rare and employment levels are always subject to quite marked fluctuations often driven by International Economic factors far from Ireland.

The Complainant had, in all his contracts the Business Needs Objective Grounds and I quote from the Employment Contract

“The nature of this employment contract is Fixed Term due to the fluctuation in business demand. This contract is there fore issued on such objective grounds.”

The European Court has defined “Objective Grounds” in the case of Del Cerro Alonso, (

(Del Cerro Alonso v Osakidetza (Servicio Vasco de Salud) (C-307/05) [2007] E.C.R. I-7109; [2008] I.C.R. 145; [2007] I.R.L.R. 911; [2007] 3 C.M.L.R. 54.)

The ECJ stated

“‘[O]bjective reasons’ must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable in that particular context of justifying the use of successive fixed-term employment contracts. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social policy objective of a member state.”

Having listened carefully to the Respondent HR Manager, a witness I found credible, I came to the view that the use of Fixed Term contracts and their use/ending by the Respondent in matching market needs was a legitimate business objective and provided an Objective Ground. The HR Manager evidence was open to cross questioning and challenge from the Respondent.

Furthermore the Respondent pointed to the fact that the Complainant had not raised the issue of the Objective Grounds in November 2015 the date the last Fixed Term was issued.

The policy is without doubt a difficult situation for Individual employees but is not in my view “inappropriate” or “unnecessary” as set out in the tests referred to by the Labour Court in Inoue v NBK Designs Ltd. [2003] ELR 98

5:3     Summary Conclusions:

Accordingly having considered all the evidence I had to come to the conclusion the Complainant failed to satisfy the Time Issue in Section 9(1) – employment being under Four Years and the Objective Grounds Argument.

Accordingly the claim under the Protection of Employees (Fixed-Term Work) Act, 2003 Dispute: CA-00005350-001 had to fail.

6:     Formal Decision and Recommendation:

Dated:   04/10/2017