ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00012174
Parties:
| Complainant | Respondent |
Anonymised Parties | A lecturer | An educational establishment |
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-00016123-001 | 4/Dec/20174/Dec/2017 |
Date of Adjudication Hearing: 15/Mar/2018
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant is a lecturer who has a permanent contract of indefinite nature in School 1, she also provides lectures in School 2 for which she is paid on an hourly basis. The Complainant feels she is entitled to a contract of indefinite duration(CID) for the work she does in School 2. |
Summary of Complainant’s Case:
The Complainant has a permanent contract for lecturing in Area 1 and has continuously and consistently lectured in Area 2 since 2003, she has no on-going contract for the work in Area 2. The Complainant has repeatedly asked for a contract of indefinite duration (CDI) for this work. In 2008 the Complainant was told, informally, that if she pursued a CID that ‘it would not be looked upon favourably’ and this was not pursued at that time by the Complainant. The Complainant maintains that when she brought the subject of a CID with the Course Director he informed her, after some time, that HR would not contest the issuing of one. When the Complainant started to communicate with HR she was looking for a CID and also for paid holidays. It soon became clear to her that she was getting nowhere. The Complainant then focussed on holiday pay and contacted the Compensation and Benefits section with her query, again she got nowhere. It was only when she contacted the Director of Human Resources directly that she was given paid holidays. The HR Director would not engage with the Complainant on the matter of a CID. The Complainant contacted her SIPTU rep who took up the task on her behalf, some four months later a final reply to the effect that the Complainant would not be issued with a CID was received. The reply stated “Ms C is not entitled to reckonable service in Area 2 as the work is hourly paid and variable in nature”. The Complainant feels that the fact that the work in Area 2 is hourly paid is not a defence against reckonable service and her work is not variable in nature in any way that is very different to any other lecturer insofar as courses change and develop over time. The Complainant states that her work is across two schools however it is for one employer. The delineation between schools is an internal matter within the university. There is only one employer number, all monies earned are detailed on one payslip, she submits one tax-free cert and receives one P60 at year end. The Complainant is seeking one contract that reflects the totality of the work she does. In conclusion, the Complainant clearly states: “the fundamentals of my case are that I have tenure of office with School 1 having reached that stage in 2008/2009 when a CID fell due to her under the Protection of Employees (Fixed Term Work) Act 2003, and at which time I was lecturing on four modules in School 2. My letters that issued to me were statements of teaching and I understood them to be Fixed Term Contracts and the work was continuous and repeated, across both semesters, every single year”. |
Summary of Respondent’s Case:
The Claimant is employed in a permanent capacity by the Respondent. A Rights Commissioner decision issued in 2011 concluded that the Claimant was entitled to a contract of indefinite duration since 2007. The Complainant was issued with a permanent part-time contract of employment in January 2012. There is no dispute between the parties that the Complainant is a permanent employee. The EU Directive on Fixed Term Work is stated: “The agreement applies to fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in each Member State”. The Protection of Employees (Fixed-Term Work) Act,2003. A fixed-term employee is defined in the Act 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”. The Labour Court has concluded in several cases that to have the protection of the Act one must fall within the definition of a fixed-term worker as set out in the Act. Permanent employees have no entitlements under this legislation. Legal cases quoted: Dublin Institute of Technology v Paul Scott (FTD 417) the Labour Court stated “If the Court takes the view that the Complainant was not working under a fixed-term contract of employment after July 2008 then under the Act he was a permanent worker. As a permanent worker he would have no locus standi under the Act.” Railway Procurement Agency v Bell & Ors (FTD 097) the Labour Court stated: “The protection of the Act is conferred solely on fixed-term employees and a complaint under the Act can only be entertained if it relates to a period of fixed-term employment”. Later in the decision the Court stated: “The essence of a fixed-term contract is that it will come to an end by the occurrence of an objectivecondition specified in the contract itself. That condition can be the effluxion of time, the completion of a specific task or the occurrence of an event”. None of the above applies in this case. In the case of UCC V Dr Inge Nieuwstraten (FTD 1122) the claimant was a permanent part-time employee but in addition also had a fixed-term contract as a part-time lecturer. The Court concluded that as the complainant was on a permanent contract of employment at the time she made her complaint that she had no locus standi to maintain her complaint under the Act. In the case Dunlaoghaire Rathdown County Council v Joe Burns (FTD 173) the Labour Court stated that: “The Appellant in the within appeal appears that at all material times he was employed by the Respondent as a permanent employee and consequently employed on a contract of employment of indefinite duration. However he also maintains that he was for a time during the same period a Fixed Term Worker employed on a Fixed Term contract of employment by the Respondent. These contentions are irreconcilable. This is not a case of the Appellant being employed in two different capacities at different times by the same employer. The Appellant in the within appeal was employed by the Respondent in only one capacity at any one time. At no material time was his employment with the Respondent at risk or under threat”. “The Court concludes that at all material times the Appellant was employed as a permanent employee on a contract of employment of indefinite duration by the Respondent and consequently he does not have locus-standi to maintain the within appeal”. Thus, under the terms of the Act a person cannot be both a permanent employee and a fixed-term employee at the same time. In this instant case the claimant could not have her employment terminated on the expiration of a fixed term or specified purpose contract then she is not regarded as a ‘fixed-term worker’ under the terms of the Act.
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Findings and Conclusions:
I have given this complaint much thought and considered the arguments presented by both the Complainant and the Respondent. The case law presented by the Respondent is very strong and in particular I would point to the following cases: In the case of UCC V Dr Inge Nieuwstraten (FTD 1122) the claimant was a permanent part-time employee but in addition also had a fixed-term contract as a part-time lecturer. The Court concluded that as the complainant was on a permanent contract of employment at the time she made her complaint that she had no locus standi to maintain her complaint under the Act. And In the case Dunlaoghaire Rathdown County Council v Joe Burns (FTD 173) the Labour Court stated that: “The Appellant in the within appeal appears that at all material times he was employed by the Respondent as a permanent employee and consequently employed on a contract of employment of indefinite duration. However he also maintains that he was for a time during the same period a Fixed Term Worker employed on a Fixed Term contract of employment by the Respondent. These contentions are irreconcilable. This is not a case of the Appellant being employed in two different capacities at different times by the same employer. The Appellant in the within appeal was employed by the Respondent in only one capacity at any one time. At no material time was his employment with the Respondent at risk or under threat”. “The Court concludes that at all material times the Appellant was employed as a permanent employee on a contract of employment of indefinite duration by the Respondent and consequently he does not have locus-standi to maintain the within appeal”. Thus, under the terms of the Act a person cannot be both a permanent employee and a fixed-term employee at the same time. These cases cannot be ignored and in light of this I have no alternative but to find in favour of the Respondent.
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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.
For the reason outlined above the complaint fails. |
Dated: 24th May 2018
Workplace Relations Commission Adjudication Officer: Jim Dolan